The Cadogan Group

Subtitle

Lost Accord

BOOKS


LOST ACCORD

The 1995 Frameworks and the Search for a Settlement in Northern Ireland

The Cadogan Group, June 1995


1  INTRODUCTION

The Frameworks proposals put forward by the two Governments on February 22nd 1995 clearly owe much to the inter-party talks held first under Peter Brooke and then under Sir Patrick Mayhew in 1991 and 1992. Ideas and suggestions put forward in those negotiations resurface in a variety of forms. In particular the established three dimensional approach is again dominant - that an overall solution must be found covering three distinct aspects of the problem - the internal administration of Northern Ireland, the Irish dimension or the links between North and South, and finally the East-West dimension, or the links between Dublin and London.

Not everyone is happy with this formula, nor with the principle that the inter-linking of the three elements is such that formal agreement on any one of them must be dependent upon agreement on the other two. Nevertheless it would seem impractical at this point to suggest any other approach. The experience of the last decade argues that all three elements must be agreed to offer hope of lasting peace and stability in Northern Ireland, though a rigid application of the formula that nothing is agreed until all is agreed could be self-defeating.

Both Governments have insisted that the Frameworks document was not put forward as a blueprint, merely as a basis for discussion. Nationalists in Northern Ireland appear to have little difficulty with this. Unionists clearly do, though some have argued that the main unionist parties should be prepared to take the proposals on that evaluation, and use the discussion process to expose the weaknesses they see in the document, and seek to have changes made. The counter argument has been that the document is so "green", so biased towards a nationalist analysis of the problem, that it cannot offer any potential for securing general agreement, and is entirely unsuitable as a focus for discussion.

A third viewpoint is that the document is part of the tactical confrontation between the two governments and Sinn Fein/IRA, and that its main purpose is to help ensure the continuation of the cease-fire over a long period of inter-party or bi-lateral negotiations. Some suggest that it was never intended by the Governments - or at least by the British Government - to be, in its detailed proposals, an outline for a long-term settlement, but rather a means of keeping people talking until a return to violence is almost impossible.

A fourth view is that the main thrust of the document is a joint effort by Dublin and London to transfer the problem of Northern Ireland into a totally Irish as distinct from United Kingdom context, leaving unionism to face the reality of having to live on the island of Ireland and in some form of agreement with the rest of the people of the island, and leaving Sinn Fein/IRA to face the reality that their enemy in any war to unite Ireland is not Britain or the Baltic Exchange, but the unionists of Northern Ireland. (Pessimistic unionists and optimistic nationalists tend to be united in this perception.)

The intention of the authors is to examine the Frameworks proposals and the process of which they are the culmination with one overriding question in mind - do the proposals indeed have the potential for securing an agreed solution, a genuine settlement to the Northern Ireland predicament. Are they workable in a practical day-to-day sense? If implemented would they satisfy nationalist aspirations and enable nationalists to accord full legitimacy to the constitutional position of Northern Ireland in accordance with majority wishes? Would the greater number in Northern Ireland, who reject nationalism, continue to enjoy the full benefits of United Kingdom membership in a genuinely democratic context with a clear line of responsibility between governor and governed? Would a settlement based on the Frameworks proposals be a settlement at all, or would it be part of a process, of a dynamic leading eventually to some imagined ideal and final resolution?

In seeking to answer these questions the booklet looks in turn at the various sets of arrangements proposed - the internal administration of Northern Ireland, the North/South linkage, and the new East-West agreement to cover Dublin-London relationships. Do they form a coherent plan to meet the needs of the main elements in the problem? Do they offer real hope of, as the British Government says, a solution that will not require participants to abandon their political principles or aspirations? What emerges as the overall philosophy, if any, behind the proposals?

Whatever the short-term influences on its contents, the Frameworks document is the outcome of a lengthy and intensive negotiation at diplomatic and political level between the two Governments. It was launched with the maximum publicity and authority by the two Prime Ministers. It must be considered a key document in the evolution of the thinking of the two Governments as regards the problem of Northern Ireland, all the more so if after such careful deliberation the two Governments remain at odds with a clear majority of the people of Northern Ireland, and, therefore, still some way from a solution.

Is there, within the Frameworks, however flawed and controversial, the germ of compromise which all reasonable people agree must be found if there is to be a settlement?

 

2  SUMMARY

The Frameworks for the Future, which were launched at the Balmoral Conference Centre in Belfast on February 22, 1995, by the Prime Minister John Major and the Taoiseach John Bruton, comprise two basic proposals, A Framework for Accountable Government in Northern Ireland, and A New Framework for Agreement, covering North/South relations, and relations between London and Dublin. In their published form these two documents are accompanied by a foreword by John Major, and an introduction.

In his foreword John Major refers to the two sets of proposals as one document under the title Frameworks for the Future. He describes the first, A Framework for Accountable Government in Northern Ireland, as the "British Government’s ideas - based on discussions with Northern Ireland parties - as to how local people could take far more control over the way Northern Ireland is governed, on a fair and equitable basis". The second, A New Framework for Agreement, he says, "describes a shared understanding - prepared at the request of Northern Ireland parties - between the British and Irish Governments, as to how relations in the island of Ireland, and between these islands, might be based on co-operation and agreement to the mutual advantage of all".

Mr Major relates the Frameworks to the Brooke/Mayhew talks which began in March 1991. All the participants, the two Governments and four Northern Ireland political parties, he says, agreed that their aim was a new beginning for relationships within Northern Ireland, within the island and between the peoples of the islands. The Frameworks were intended to carry this process forward.

The two-page foreword is followed by a two-page introduction, which emphasises that an overall agreement should be reached by negotiation, and that it is essential that any outcome is acceptable to the people. It repeats the Government’s undertaking to submit any outcome from the talks process to a referendum in Northern Ireland. The proposals are offered, it says, as a basis for further negotiation. They are not a blueprint for the parties to accept or reject, but proposals offered for consideration, and "strongly commended" by the two Governments.

Part 1 of the main document, A Framework for Accountable Government in Northern Ireland, proposes a Northern Ireland Assembly of 90 members, with a system of committees, in proportion to party strengths, to oversee the work of the NI Departments and other functions. The Chairman of a Committee would be Head of Department of the relevant Northern Ireland department. A separate Panel is proposed, "probably" of three people elected within Northern Ireland in a PR vote in a single constituency. This Panel would "complement" the working of the Assembly; it would work by consensus, and would have a role in nominating the chairmen and deputy chairmen of Assembly committees, as well as undertaking "important consultative, monitoring, referral and representational functions".

The Assembly, subject to the powers of the Panel, would be the legislature for Northern Ireland as regards transferred matters, over which its committees would have executive powers. The Secretary of State however, would remain accountable to Westminister for all non-transferred matters, such as law and order and public expenditure.

For legislation to be approved, it would have to have a majority in both the committee and the full Assembly. A Business Committee could decide that a proposal was contentious and would therefore require a weighted majority (to be decided) in the Assembly. The Panel would nominate the Assembly Committee Chairmen - to be voted on by the Assembly - and would have to approve a range of public appointments in respect of matters handled by the Assembly, and would also advise the Secretary of State on appointments within his responsibility. The Panel would have power to accept, reject, or amend any legislation referred to it by the Assembly. All Panel decisions must be unanimous.

Annex A to Part 1 outlines the general approach of the Government to a settlement. It declares that its primary aim is to see peace, stability and reconciliation established by agreement "among all the people who inhabit the island of Ireland", and it defines its own role as being "to encourage, facilitate and enable the achievement of agreement over a period through a process of dialogue and co-operation based on full respect for the rights and identities of both traditions in Ireland".

It then lists a series of "political realities" which any new arrangements must take account of. They must be acceptable to the people, and must give "appropriate expression to the identity of each of the two main parts of the community". They must "address all the relevant relationships" - within Northern Ireland, with Westminster, with Dublin, and those between London and Dublin. They must take account of the present reality that in fact and in international law Northern Ireland is part of the United Kingdom, and that this will not change without the consent of a majority in Northern Ireland.

It declares that the right to aspire to a sovereign united Ireland achieved by peaceful means is no less legitimate than the majority wish to remain within the United Kingdom, and it states the Government’s view that a settlement can be found which would not require any of the participants to "abandon their basic political principles or aspirations". It concludes with the Government’s declared view that the ideas in the Frameworks "represent an outline package which has the potential for securing general agreement". But it would also, in principle, accept a range of other outcomes if they were broadly acceptable to other participants.

Annex B to Part 1, entitled "An Outline of a Comprehensive Settlement", rather confusingly draws on the proposals of both Part 1 and Part II which follows it. It summarises the main elements of a possible settlement as

  • new political institutions in Northern Ireland, as described in Part 1;
  • a new North/South body or bodies, and an interparliamentary forum, supported by a secretariat, to cater for the North/South relationship;
  • a new agreement to replace the Anglo-Irish Agreement, with an Intergovernmental Council and, it would seem,"a formal Intergovernmental Conference";
  • a shared understanding of the constitutional issues, which achieved a balanced accommodation of the differing positions of the two main traditions.
  •  

Shared Understanding

Part II,The New Framework for Agreement (otherwise known as the Joint Framework Document) is sub-titled "A shared understanding between the British and Irish Governments to assist discussion and negotiation involving the Northern Ireland parties". Its 58 paragraphs deal in turn with the general background to the proposals and the principles on which they are based, constitutional issues, Structures in Northern Ireland, North/South Institutions, East-West Structures, and the Protection of Rights.

The Downing Street Declaration is frequently cited, and the Governments state four guiding principles -

  • self-determination as set out in the Declaration;
  • consent of the governed essential in any political arrangement;
  • agreement to be pursued by exclusively democratic and peaceful means - no violence, no coercion
  • full respect for, and protection and expression of, the rights and identities of both traditions in Ireland, and parity of esteem for both communities in Northern Ireland.

Both Governments say any agreement must have "a balanced accommodation of the differing views of the two main traditions on the constitutional issues in relation to the special position of Northern Ireland". That "balanced accommodation" will be enshrined in British constitutional legislation, possibly by amendment of the Government of Ireland Act, and the Irish Government, as part of an agreement will propose changes in the Irish Constitution to "to implement the commitments in the Joint Declaration" which will reflect fully the principle of consent in Northern Ireland.

New North/South institutions should be created to cater for present and future inter-connections on the island of Ireland, leading to "agreed dynamic, new co-operative and constructive relationships". These institutions would include a North/South body involving "Heads of Departments" representing the Irish Government and new institutions in Northern Ireland. This North/South body would discharge, or oversee, delegated executive, harmonising or consultative functions over a range of matters designated by the two Governments in agreement with the parties. In deciding which functions might be designated, account would be taken of common interest, mutual benefit of addressing a matter together, mutual benefit derived from joint administration, or economies of scale and avoidance of duplication.

Where executive powers would be involved the North/South body "would be directly responsible for the establishment of an agreed policy and for its implementation on a joint basis". Categories proposed for joint executive authority are sectors involving a natural or physical all-Ireland framework, EC programmes and initiatives, marketing and promotion activities abroad and culture and heritage. A longer list of categories is suggested for "harmonising" via the North/South body, ranging from agriculture to economic policy, and including health, social welfare and education. Specific examples of harmonisation include research, training and advisory services in agriculture, cooperative ventures in medical training , mutual recognition of teacher-training qualifications.

All decisions in the North/South body would be by "agreement between the two sides". It would be supported administratively by civil servants from North and South; finance for the North/South body and its agencies would be arranged by the two administrations. A Parliamentary Forum of representatives from Belfast and Dublin is also anticipated. The remit of the new North/South body would be "dynamic, enabling progressive extension by agreement of its functions to new areas. Its role should develop to keep pace with the growth of harmonisation and with greater integration between the two economies".

Under East-West Structures the two Governments envisage a more broadly-based replacement for the Anglo-Irish Agreement. It would have a standing Intergovernmental Conference, as now, chaired by an Irish Minister and the Secretary of State, and it would still have a permanent secretariat. It would provide " a continuing institutional expression for the Irish Government’s recognised concern and role in relation to Northern Ireland".

Article 47 declares that if the devolved institutions in Northern Ireland ceased to operate, then direct rule from Westminster could return and arrangements made to ensure that the commitment to promote North/South co-operation at all levels, and co-operation already developed through the North/South body, would be maintained.

Finally the Framework proposes arrangements to ensure the systematic and effective protection of common specified civil, political, social and cultural rights in both parts of Ireland.

 

3  GOVERNING NORTHERN IRELAND

The one certainty in the plan for Accountable Government in Northern Ireland outlined in Part 1 of the Frameworks document is that the Government is committed to the idea of devolution with an elected assembly, some form of administrative authority, and as many and comprehensive safeguards against abuse of majority status as can be devised. But the actual proposals are in many instances tentative, and little attention is devoted to exploring how they might operate in practice.

The proposed new 90-seat Assembly might at first have only executive powers or, alternatively, it might have legislative powers from day one. The directly-elected three-man Panel is given a central role in the operation of the whole scheme, but is itself referred to only as a possibility in the summary version of the document. If it existed, its decisions would be taken by consensus. However the document has no proposals as to what, if anything, should happen if consensus were not to be reached.

These are important uncertainties. If the Assembly had only administrative functions, legislation would have to be enacted at Westminster and the Secretary of State would continue to be responsible for it. In those circumstances the Assembly could become a more conventional local government mechanism, and there would be no need for the Panel. Even if the Assembly had legislative powers there is a strong argument against having the Panel because inevitably all the controversial issues would be referred to it, and the supposed virtues of the cross-community committees and Departmental Heads would be lost. However without the Panel it would be necessary to have an identified Chief Executive, and a different method of appointing departmental heads. This could usefully strengthen the Northern Ireland side in North/South body discussions with strongly motivated Dublin Ministers. In 1973, under the Sunningdale proposals, the appointing function belonged to the Secretary of State, although the logic of local democracy may suggest that power should rest with the Assembly. Without the Panel there would be no method internal to Northern Ireland for monitoring the Assembly, and the Secretary of State would have to have greater residual influence.

The proposals for weighted voting are less important. They are not in final form; their interest lies in their evident assumption that community voting blocks will be permanent, and that they must be outmanoeuvred by requiring majorities to be large enough to exceed unionist voting power on its own.

The proposals do not provide a serious management model. In a United Kingdom-style legislative assembly there would be a leader, and a coherent "cabinet". This would ensure that the ordinary sequence of financial allocations and new legislation was considered, introduced and passed. Under the Frameworks proposals there would evidently be a finance committee, a general purposes committee and a business committee. All would be cross-party and all would have overlapping functions. There would be no chief executive. The theoretical possibilities for confusion and immobility are very great. To keep business moving the Panel would have to be applied to, but the Panel members have to act unanimously. If it was proposed, in line say with United Kingdom Government policy, to take a locally unwelcome step, how could a decision be reached?

The structure is designed so that it requires community support for all difficult decisions, and in practice, if there was a Panel, the rule would be unanimity. Yet surrounding the Assembly there is to be a maze of committees and authorities and legalities, all designed to guarantee fairness and consensus. Within the Assembly there are to be Heads and Deputy Heads of Departments in charge of cross-party committees. Outside the Assembly there is the Panel, presumably with a staff. Behind the Panel is the Secretary of State. Beyond him is Westminster. Within Ireland there is the North/South body with a staff and separate Parliamentary Forum. Between the United Kingdom and the Republic there is to be an Intergovernmental Conference, with staff. The Anglo-Irish Intergovernmental Council, that almost forgotten relic from the 1981 London-Dublin accord, is to continue. There are to be provisions for systematic protection of human rights, and for an Irish Covenant or Charter.

These infinitely complex proposals are supposed to ensure the fair government of only one and a half million people. They presuppose a community of malign children, needing the constant oversight of benign governesses from London and Dublin. They institutionalise community divisions and make it impossible for difficult decisions to be taken. They can have no merit as an effective mechanism of regional government.

How then is it possible that the two Governments regard the proposals as necessary? The explanation must be partly historical. It is conventional wisdom to assume, rightly or wrongly, that the old Stormont majority abused its powers, and that in any future comparable scheme of devolution a majority would do so again. For the SDLP checks and balances are deemed necessary to control the inevitable unionist majority. This is understandable, but the system proposed suggests that neither side has learned any lessons over the past 25 years. Ironically the proposals so obviously based on the absence of trust would themselves, in the words of Sir Kenneth Bloomfield, former Head of the Northern Ireland Civil Service, require mutual confidence and goodwill "to an exceptional degree" to have any hope of working.

While criticisms of the workability of the Assembly procedures seem well-founded, unionist dissatisfaction with the proposals goes further. The Ulster Unionist Party’s response to the proposals raised the fear that not only would the Assembly be virtually powerless, but power would shift from it to the North/South body, which would mean "effective control of the governance of Northern Ireland by Dublin". The Democratic Unionist Party has expressed similar views, Peter Robinson arguing that the North/South body would have a life of its own which would go beyond the existence of a Northern Ireland assembly.

For unionists this is seen to marginalise and trivialise the Assembly, and thereby the mandate held by elected representatives in Northern Ireland, while the SDLP sees the relationship of the Assembly to the North/South body as acknowledgement of the nationalist claim that there can be no exclusively internal solution.

The form taken by the Frameworks reflects the priorities of the two Governments rather than the needs of Northern Ireland. It is the insistence on the North/South body, with its indefinite capacity to seek expanded powers, which would make the difficulties for any community-based Stormont insuperable. It is the insistence on the nightmare ineffectuality of the cross-community arrangements proposed which makes it probably unworkable. The proposals are not so much an instrument of good government for Northern Ireland as a wish list of Dublin and London priorities.

This does not mean that the idea of a locally-elected assembly is redundant. There is need for some type of parliamentary scrutiny of government in Northern Ireland. There is scope for a focus for local politics and a forum for partnership in administering at least some of our own affairs. In that there is inevitably going to be a North-South or Irish dimension, there is sense in having a democratically responsible body to provide the Belfast end of that dimension. Shed of some, but not all, of its checks and balances, shorn of its Panel, the Frameworks Assembly could possibly fill that gap. It could elect a power-sharing executive along the lines that almost worked in 1974.

 

4  NORTH/SOUTH

The most controversial aspect of the Frameworks is undoubtedly the proposal to set up North/South institutions to "cater adequately for political, social and economic interconnections on the island of Ireland". These institutions are to include a North/South body involving Heads of Department on both sides, established by legislation in Westminster and Dublin.

This new body, with subsidiary agencies, is to handle broad areas of public sector activity in Northern Ireland and in the Republic on a joint basis. Directly, or through its agencies, it would have executive authority over designated areas including the establishment of agreed policies and their implementation on a joint North/South basis. Both Governments "expect that significant responsibilities, including meaningful functions at executive level" will be designated for handling in this joint manner. Alongside the executive function will be an obligation to harmonise policy in designated areas and a requirement to consult on a wide range of issues within the competence of either administration.

The practical impact of these arrangements would depend on the precise functions designated to the new body or bodies. The Frameworks document states that this is for negotiation. Nevertheless it is clear that this North/South body is the very heart of the Frameworks. In the words of paragraph 10 iv of A New Framework for Agreement it will offer "full respect for, and protection and expression of, the rights and identities of both traditions in Ireland and even-handedly afford both communities in Northern Ireland parity of esteem and treatment...". The same document states even more clearly the purpose of the new North/South institutions when it says these will "enable representatives of democratic institutions, North and South, to enter into new, co-operative and constructive relationships; to promote agreement among the people of the island of Ireland; to carry out on a democratically accountable basis delegated executive, harmonising and consultative functions over a range of designated matters to be agreed; and to serve to acknowledge the rights, identities and aspirations of the two major traditions".

Beyond doubt the new North/South body is the mechanism chosen by the two Governments to meet nationalist demands for "a political expression of their Irish identity". At the same time the document does suggest that there must be some practical justification for allocating functions to the North/South body. In determining what functions it will have the two Governments say account will be taken of

  1. the common interest in a given matter on the part of both parts of the island; or
  2. the mutual advantage of addressing a matter together; or
  1. the mutual benefit which may derive from it being administered by the North/South body; or
  2. the achievement of economies of scale and the avoidance of unnecessary duplication of effort.

These are very general even vague criteria, and the way they are presented indicates that any one of them would be deemed sufficient to justify allocating an area or function to the joint body. It is worth noting that the context is North/South, a much broader concept that simply cross-border. The first proviso is so wide that it could be taken to include almost any area of public sector activity. While stating that the functions to be allocated will be decided "by agreement with the parties", the two Governments go ahead in the document and give lists of those areas which they intend to designate both for executive and harmonising functions. At no point do they offer any argument on practical grounds for their choices. Subsequently both the Taoiseach Mr Bruton and the Minister of State Mr Ancram have stressed that any North/South arrangements must serve practical purposes.

Nevertheless, a fundamental weakness of these proposals is that there is no obvious economic or social need for a new North/South institution to promote enhanced cross-border co-operation of the types outlined in the document. It would be a simple matter, and less politically contentious, to set up ad hoc committees in each major administrative department to examine the potential for cost savings or efficiency gains through cross-border collaboration. Recommendations could be made for harmonisation or consultation. In some particular cases recommendations might be made to set up more permanent bodies, but not as a general rule. To take one simple example, it is perfectly possible for national railways to organise cross-border transport without a new joint administrative institution.

 

No Case Made

The bald fact is that no economic or social case for a major cross-border institutional body has been made, nor is it made in this document. This does not mean that no such case could be made, but until now the entire push for cross-border organisations has come either from nationalist politicians or from the rarefied circle of those officials charged with reaching a political settlement.

There is an important distinction to be made between cross-border institutions and cross-border activity. Many people support greater trade, enhanced contacts and economic collaboration between north and south. These include the CBI in Northern Ireland and its equivalent the IBEC in the Republic. These two organisations meet formally twice yearly, and work to promote increased contact and trade between the two jurisdictions. They have jointly supported research into the feasibility of promoting a Belfast-Dublin "economic corridor" as a focus for economic development policies. The Northern Ireland Chamber of Commerce and Industry and the Institute of Directors are similarly active.

There has always been a large amount of cross-border activity, although this is rarely acknowledged. For instance even five years ago Northern Ireland companies sold three times more to each person in the Republic than to each person in Great Britain. Moreover Northern Ireland firms were in 1990 selling twice as much to each resident of the Republic as Scottish companies were selling to each person in the rest of the United Kingdom. The size of the main British market is such that general sales figures for that destination are so dominant that the rising level of trade with the Republic is often overlooked. The flow of trade from the Republic to Northern Ireland has been even greater. Over the four years preceding the cease-fire the volume of south-north trade expanded by 30%, much more quickly than Northern Ireland’s trade with Great Britain.

All this reflects the fact that the business communities north and south have every interest in promoting additional trade and in arguing for government policies which achieve this end. They would probably not be averse to cross-border institutions, as long as these were politically uncontroversial, but as a matter of fact have not felt it necessary to say so.

The end of political violence in Northern Ireland will help to expand trade. It will also stimulate mergers and collaborative deals. Large southern milk producers are, for instance, likely to take over more Northern Ireland creameries. This has occurred in the past and will continue, perhaps with some acceleration. There is no obvious need in any of this for cross-border organisations to supplement or duplicate existing national and international bodies for the promotion and regulation of trade. At the same time increased trade and commercial contacts do constitute one aspect of the Irish dimension.

If cross-border bodies are not necessary to stimulate trade, are they needed in other spheres? The Frameworks document mentions, among others, tourism and energy. In tourism it may well prove advantageous to market the whole island as a single unit. The case is not overwhelmingly obvious, any more than it is to market jointly Welsh and English tourism. Joint marketing is a matter of commercial strategy yet to be publicly debated but there are at least arguments in favour. What does not necessarily follow is that joint marketing requires a single tourist board for the whole island. Tourist boards have a range of roles. They are responsible for general marketing and promotion, for grants and subsidies, for gathering statistics and for some regulation and maintenance of standards. They also have interests in the organisation of training in, for example, hotel management and catering. Most of these things are naturally best organised within a single jurisdiction. Any joint activity is, at least initially, best organised by collaboration between boards.

In energy the arguments for joint organisations are far from obvious. In Northern Ireland the electricity and gas industries are in private hands. In the south electricity remains a nationalised industry. These organisations can and will sell power to each other and may even jointly own some transmission lines. Again this is normal practice as between the United Kingdom and France for instance. In the long run the Republic may wish to privatise its electricity industry and if so cross-border mergers are possible in the same way as French water companies have bought English companies. At present there is no apparent role for cross-border organisations in this sector.

 

Facing Two Ways

The Frameworks proposals seem at times to be facing two ways on the North/South body or bodies. On the one hand the areas indicated for such joint handling at either executive or harmonising levels are very wide indeed. The Governments do say that they expect that "significant responsibilities, including meaningful functions at executive level" will be a feature of any new arrangement. The remit of the North/South body, they say, should be dynamic "enabling progressive extension by agreement of its functions to new areas. Its role should develop to keep pace with the growth of harmonisation and with greater integration between the two economies".

That is a radical and ambitious agenda. When a draft of the proposals was leaked in The Times three weeks before actual publication of the document, the proposed role for the North/South body and the all-embracing list of matters to be harmonised, caused huge concern in Northern Ireland. As a result, it seems, a new paragraph was inserted giving the examples of what was envisaged for harmonisation.

The examples in the official document, both for executive functions and for harmonisation, are generally limited and sensible. They include things which are already undertaken and might be extended without controversy, such as joint tourism marketing abroad. On harmonisation the document talks of research, training and advisory services, animal welfare, cross-border provision of hospital services and major emergency/accident planning. Harmonisation in education "might include mutual recognition of teacher qualifications" and co-operative ventures in specialist areas.

Two readings of the document are therefore possible - one that the whole machinery for cross-border institutions is largely symbolic, and that their actual role will be as limited as indicated by the examples given. The alternative view is that the intention really is to create a highly significant and dynamic role for the Dublin Government in the administration of Northern Ireland by way of its participation in North/South bodies dealing with a wide range of activities, and that the examples were inserted at the last moment to defuse unionist anger.

Either way, in the absence of any well-founded economic or social rationale, it remains clear that the aims of the framework proposals in this regard are political, rather than social or economic. Are these political aims in themselves sensible? The current nationalist demand for a cross-border institution was itself first formulated by the SDLP in its founding policy document Towards a New Ireland (1972) Its stated aim was to achieve joint sovereignty pending Irish unification. The demand for cross-border institutions has subsequently become fossilised as a token of nationalist political progress.

The problem now is that with the virtual universal acknowledgement of the principle of consent, there is almost certainly not going to be either joint sovereignty or Irish unification. (In any case both are ruled out by considerations of finance.) In this situation, what is the real benefit to anyone of setting up a new and complicated tier of government with ambiguous but potentially ambitious aims?

The answer, explicit in the document, is that participation by northern nationalists in the cross-border bodies would help give them "secure and satisfactory political, administrative and symbolic expression" of their Irish identity, and this would be bolstered by the involvement of the Irish Government in the affairs of Northern Ireland via the same mechanism. The hope is, presumably, that this would make it possible for nationalists, and the Dublin Government, to accept the reality - and legitimacy - of the constitutional position of Northern Ireland within the United Kingdom, and thereby make a real settlement possible.

But a quite different outcome is also possible. The core of the nationalist tradition, which the Governments insist must be accorded "full and equal legitimacy" with unionism, is the political unification of Ireland and the withdrawal of all United Kingdom authority over Northern Ireland. The arrangements proposed in the Frameworks may be seen by nationalists and indeed by some unionists as a step on the way to the fulfilment of that ambition, not as a substitute for it. The more so as the Frameworks repeatedly insist on the "dynamics" - albeit agreed dynamics - of the proposals, on agreement between "the peoples of Ireland" and on greater integration between "the two economies", with no acknowledgement that Northern Ireland’s "economy" is only a regional dimension of the UK economy.

Finally the proposals raise some more practical issues. The Governments, the document says, envisage regular and frequent meetings of the North/South body. It would, or could, become a central element in the government and administration of Northern Ireland. Decisions in it would be "by agreement between the two sides". The two sides would be "the Heads of Department representing the Irish Government and new democratic institutions in Northern Ireland", meaning not civil servants, but Government Ministers from the South, and the Chairmen of Committees in the new Northern Assembly.

The phrase "agreement between the two sides" suggests that each side would approach each issue with a coherent view of the matter. Southern Ministers in the North/South body would be Ministers of a government with defined policies and collective responsibility. The Chairmen of Committees from Northern Ireland would not be members of any government, or of any collective administrative body with an agreed set of policies. Some would be unionists, some would be nationalists, some would be neither. Would their committees and then the Assembly itself have to approve a specific mandate for them on each issue as it came before the North/South body? If decisions must be taken by agreement between the two sides, then the North/South body could be little more than a symbolic institution, rubber stamping what the two separate administrations had already decided was worth doing.

The idea of North/South bodies is fraught with difficulties over authority and responsibility for public expenditure. Within a single state the administrative lines of responsibility are clear. Ultimate responsibility lies with the national or local government and is delegated to employees who are ‘accounting officers’ and can be held responsible for their actions, and if necessary, dismissed. Where there are two independent governing bodies and funds flowing, perhaps unequally from different sets of taxpayers, the complexities are obvious, and possibly destabilising.

Nevertheless the "Irish dimension" is an essential element in any settlement, and one of prime importance to nationalists. Clearly something more than increased cross-border co-operation across a range of activities is needed; a symbolic as well as a pragmatic Irish dimension, it would seem, has to be devised. In previous publications the Cadogan Group has suggested a focus on the island of Ireland as a concept, and on a broad non-political sense of Irishness shared by nationalist and unionist as the best hope of finding an acceptable Irish dimension. We proposed the creation of a North-South Co-operation Council to promote activities on an all-island basis, and to serve as a symbolic embodiment of a non-political Irish dimension. At the same time full recognition by nationalists of Northern Ireland’s legitimacy as a region of the United Kingdom would reinforce an Irish identity that could be fully shared by unionists and nationalists.

The actual institutions proposed in the Frameworks document are not necessarily incompatible with such an approach. But by placing them in a highly political context, with a declared function as regards meeting nationalist aspirations, and by insisting upon their "dynamism", the Governments make it extremely unlikely that the majority in Northern Ireland will accept them.

 

5  East-West

In the Frameworks documents the "East-West" structures appear almost as a postscript to the main proposals the focus of which is North-South. This is rather surprising since the political talks of 1991 and 1992 - where the Frameworks supposedly had their origin - were all about replacing or transcending the existing East-West structure, the Anglo-Irish Agreement. It is not at all clear that the Frameworks proposals would alter the Anglo-Irish Agreement in any significant way.

The eleven paragraphs devoted to East-West structures indicate that both Governments envisage a "new and more broadly-based (Anglo-Irish) Agreement", but say they intend to keep a "standing intergovernmental Conference" supported by a Permanent Secretariat, and chaired by the Secretary of State and an Irish Minister.

This new "broadly-based" agreement would appear to have profound similarities to the old narrowly-based Agreement. Not only will the conference and the secretariat be maintained, the focus of their activity will remain Northern Ireland itself and its relationships with the Republic, rather than relations between the United Kingdom and the Republic. Paragraph 42 of the New Framework Document simply restates the proposition from the original Anglo-Irish Agreement which unionists have found insupportable, namely that the Irish Government not only has a "recognised concern" in relation to Northern Ireland but that it also has a recognised "role". That role has been, and will be, to act as an advocate of the interests of the nationalist minority. On a "wide range of issues concerned with Northern Ireland and with the relations between the two parts of Ireland" the British Government once again acknowledges the right of the Irish Government to advance those interests and accepts that "determined efforts will be made to resolve any differences between the two Governments".

In doing this the two Governments restate an approach which has been contested by unionists since 1985. The only difference now would seem to be that this new agreement would be arrived at "through direct discussion between the two Governments and the other Talks participants" (indeed a difference from 1985) and that Northern Ireland representatives "would play a greater part in it than at present".

The new agreement would also be different in that it would be part of a whole new framework concentrated on an accommodation within the island of Ireland and including the proposed North/South institutional arrangements. Taken as a whole these proposals do transcend in importance and scope all previous arrangements. As the opening paragraph of the East-West section states, the new and more broadly-based agreement is designed to "extend", "enhance", "develop", and "intensify" co-operation in order to achieve agreement in Ireland at all levels.

Like the Anglo-Irish Agreement, perhaps even more so, these proposals are essentially concerned with affairs relating to the internal administration of Northern Ireland. For example paragraph 44 would seem to make policing in Northern Ireland a matter for the two Governments. On North-South relations, paragraph 47, the so called default mechanism, states that if the devolution proposals fail, the British Government would ensure the North-South element would continue. This section on East-West structures does not so much complement the North/South structures as fortify them.

Paragraph 39, which acts as a preamble to this section of the Frameworks, notes two levels of reference: first, "the totality of relationships between the two islands" and second, the island of Ireland "at all levels". The first level, expressed in terms inherited from the Anglo-Irish summit of 1980, does attempt to reflect the wider social, cultural and economic interconnections of the island of Great Britain and the island of Ireland. Interestingly, it found a good deal of support in an Ulster Unionist submission to the Mayhew talks. This submission advocated a Council of the British Isles consisting of representatives of the two Governments and of a devolved administration in Northern Ireland. The Council would have been a forum for the discussion of matters of mutual interest within the "totality of relationships" embracing both islands. It would indeed have been an authentic East-West structure.

The second level, as we have argued above, is not really East-West at all. It is North-South. If it were simply a case of this level being one part - but only one part - of the totality of relationships then little exception need be taken to it. Unfortunately, the logic of the succeeding paragraphs in this section of the Frameworks makes it the vital centre of all other relationships. In short, the phrase "fostering co-operation, reconciliation and agreement in Ireland at all levels" rather than being supplementary to "the totality of relationships between the two islands" actually subordinates it to a single island perspective. This serves only to narrow and constrain the possibilities for imaginative new relationships between the two islands and heightens unionist suspicions that a simple nationalist agenda is being promoted.

The Great Britain dimension of the totality of relationships only reappears as an aside, as a sort of afterthought, in paragraph 43 where an unspecified "range of ‘East-West’ issues and bilateral matters of mutual interest not covered by other specific arrangements" are designated for co-operation between the two Governments. The active principle of co-operation, however, institutionalised and directed through an Intergovernmental Conference, is that concerned with the island of Ireland. Like the Anglo-Irish Agreement there is an obsession with the narrow ground of the island of Ireland, North (primarily the North) and South. Confirmation of this function of the Agreement lies in the wording of paragraph 41 - "reconciliation amongst the people of the island of Ireland" - and paragraph 42 - "issues concerned with Northern Ireland and with the relations between the two parts of the island of Ireland". Such objectives may be worthy enough in themselves, but repeated in this East-West section they only re-affirm the myopic concerns of the existing Agreement and compound them by the commitment of both Governments to their "intensification".

The proposed ambit of the new Agreement remains unclear. In principle, it would be nothing more or nothing less than what was provided for in the 1985 version - the scope of the Intergovernmental Conference would be reduced corresponding to the powers devolved to an assembly in Belfast. In addition, however, the Frameworks hold out the possibility of a democratisation of the Conference by providing an input from the local parties into its deliberations. Paragraph 48 states that "representatives of agreed political institutions in Northern Ireland may be formally associated with the work of the Conference" and that other "more structured arrangements could be devised by agreement". Both points are there, presumably, to encourage the unionist parties to overcome their reservations about the old Agreement.

Yet the first, the promised transfer of responsibilities from the Conference to a new Assembly, did nothing to persuade unionists to accept the 1985 Agreement, and their reaction to the Frameworks gives no indication that they are likely to reconsider that position. As for the second point, participation by local representatives in the Conference, the Framework does not promise this as of right. They may be only "formally associated with the work of the Conference". This "association" seems at first sight rather perfunctory. It might consist only of giving the representatives "advance notice of what is to be discussed in the Conference, enabling them to express views to either Government and inviting them to participate in various aspects of the work of the Conference". There is no obligation on the part of the two Governments to take these views seriously; no obligation to make "determined efforts" to resolve differences; no clear indication of what being "associated" with the work of the Conference would mean in practice. Nor is there an indication of what the "work" of the Conference would be. The fact that the phrase - "associated with" the work of the Conference first appeared in an Irish Government paper of November 1993 will not make unionists any less wary.

There is equal ambiguity about the involvement of local parties in the establishment of this new Agreement and their involvement in its procedures. On the one hand, Part 1 Annex B states that the "new agreement would be arrived at through direct discussions between the two Governments and the other Talks participants". This implies that the form of the new Agreement is not pre-determined and is open to change. On the other hand, the details of the Frameworks make it very clear that the institutions envisaged - the Conference, the Secretariat and its programme of work - are pre-determined. There is no indication whatsoever that the long-standing unionist objection to the Anglo-Irish Agreement has been addressed, namely that it has no legitimacy in their eyes because they were not consulted on its form. What consultation there is to be does not concern the structure but merely the work of the Conference.

This should come as no surprise. An Irish Government negotiating paper leaked to the Irish Press in November 1993 proposed that the two Governments’ proposals "will not be the subject of discussion, still less negotiation with the Northern Ireland parties unless both Governments agree beforehand whether and how this should be done". That is what seems to have been accepted as the procedure with the Frameworks. Indeed, much of what appears not just in this section but throughout, reflects the thinking and the wording of that Irish position paper. Such fidelity to the broad outlines of the Dublin strategy makes the Frameworks appear less than balanced.

Nevertheless, the association of Northern Ireland politicians with the work of the Conference might open it up to wider public scrutiny and make its deliberations transparent. It would end the worst aspect of the present arrangements - their secrecy.

 

Default Clauses

Paragraphs 46 and 47 have been popularly judged to be "default" clauses. Paragraph 47 states that if devolved institutions in Northern Ireland ceased to operate, and direct rule from Westminster was reintroduced, "the British Government agree that other arrangements would be made to implement" co-operation "at all levels" in Ireland. It would also ensure that whatever co-operation had been developed through the North/South body would be maintained. Michael Ancram’s explanation of this paragraph (Belfast Telegraph 15 March 1995) was that only arrangements for mutually beneficial cross-border co-operation "which existed at the time of the breakdown" would continue if the Assembly failed and direct rule was reintroduced. That does not appear to be the full story. The paragraph mentions the "commitment to promote co-operation at all levels", not just existing arrangements; and it refers not only to the Frameworks but also to the Downing Street Declaration. That might open up many other possibilities. Indeed, it might actually provide an incentive for nationalists to make an Assembly unworkable.

Paragraph 47 also specifies that the Conference will have the capacity to ensure that the "new arrangements established under it" operate fairly and effectively. It goes on: "where either Government considers that any institution, established as part of the overall accommodation, is not properly functioning within the Agreement" then both Governments will try to resolve the matter on the basis of an agreed understanding. However, in implementing this agreed understanding each Government would implement measures of redress within its own jurisdiction. There "would be no derogation from the sovereignty of either Government".

This is a difficult and crucial paragraph. There are two possible ways of reading it. First, there is a narrow interpretation. We have emphasised two phrases "under it" and "within the Agreement". The narrow reading would suggest on the basis of these two phrases that the review and resolution powers of the Conference would apply only to those matters falling within the scope of the "new and more broadly-based" Agreement. It would exclude matters transferred to the Assembly and most cross-border matters (paragraph 45). However, as we argued above, the wording of the East-West section of the Frameworks does not make it very clear exactly what the scope of the Conference would be. We have suggested it would be quite far reaching. Thus a second reading is possible.

This wide interpretation understands this paragraph to imply that "any institution, established as part of the overall accommodation" would be subject to the review and resolution powers of the Conference. This would permit an activist Conference to interfere constantly in the affairs of Northern Ireland and in agreed North-South arrangements. The Conference would then be a quasi-judicial body, albeit a quasi-judicial body with a political remit to foster a dynamic interpretation of the provisions of the Framework. Such an interpretation is closer to the spirit of the Irish paper of November 1993 where it is stated: "The Conference will have contingency powers of intervention and redress in the event that devolved institutions fail demonstrably to meet their obligations, or fail altogether to survive or to discharge their designated functions." The Conference, rather than being a forum of last resort would become a sort of directive commission.

The proposals suggest, in what is almost a passing reference, that the Anglo-Irish Intergovernmental Council, set up in 1981 but largely forgotten since 1985, will continue, and might have a role in developing co-operation between London and Dublin on matters not covered by the new Frameworks arrangements. Could this Council, originally set up with great expectations and very much concerned with co-operation between the governments in London and Dublin, and which never attracted unionist hostility, have a role to play now?

There is much that needs to be clarified by the two Governments in this section on East-West structures. Its ambiguities are hardly a credit to the rigours of two years of careful diplomatic draughtsmanship. It might be argued that the diplomacy lies in the ambiguities, that ambiguity is an important part of the "peace process". But since this Framework is supposed to be the two Governments’ "best assessment of where broad agreement might be found" then it is only proper that they should be able to provide appropriate answers before the people can make their best assessment.

 

6  THE EUROPEAN DIMENSION

References to the European Union are scattered through all parts of the Frameworks document and have, to date, provoked less controversy than other aspects of the proposals. This is probably because the European dimension is a relatively minor one, some of the suggestions are straightforward and practical, and almost certainly because some of the more radical, not to say bizarre suggestions that have been aired in recent months are absent from the document.

The Frameworks for the Future do not propose that the Dublin Government should represent Northern Ireland in dealings with the institutions of the European Union, nor do they suggest that there should be one EU budget-line for the whole island of Ireland. On the other hand behind the often vague references to the European Union are quite profound implications for the constitutional position of Northern Ireland and its relationship with the rest of the island, and a series of hints that a much more developed link with Dublin in the European context has not been ruled out.

The New Framework for Agreement foresees "special arrangements" to allow the new supervisory North-South body to handle European Union matters. European programmes and initiatives are among those categories specified to be allocated "at the outset" to a cross-border body with executive functions. These proposals are significant, but they do appear to fall short of what was, according to the leaks, incorporated in earlier drafts of the Frameworks document.

The EU is part of our system of government, and Northern Ireland relates to it through United Kingdom membership of the EU. European Union impact on Northern Ireland manifests itself mainly in two ways - through legislation, and through expenditure of public funds. European laws are made effective by incorporating them in British law, while European funds are tied into British public expenditure plans, and are regarded as part of total public expenditure.

The Frameworks show some awareness of these realities. The final clause of the internal Framework for Accountable Government in Northern Ireland states that new institutions in Northern Ireland would be responsible for implementing European legislation and programmes in the transferred field, and for developing Northern Ireland’s views on EU issues and representing them to the UK Government. All of this is sensible and uncontroversial; so indeed is the added suggestion that the new NI institutions should also be responsible for representing Northern Ireland’s views on EU issues in any new North/South institutions. But the next sentence suggests that much more was contemplated:

"Further consideration would need to be given, with the British Government, to the arrangements which will be necessary for this purpose. These arrangements must respect the British Government’s responsibility for the whole of the UK in the European Union and before the European Court of Justice."

The reminder of the British Government’s legal responsibility for Northern Ireland within the UK is a hint that arrangements which might conflict with this fundamental responsibility have already been suggested, and may be given further consideration. The idea that Northern Ireland interests within the European Union might be represented, not by the British Government, but by an all-Ireland partnership with the Irish Government, does not appear in the Frameworks, but it still lurks in the background.

Its shadow is given more substance by paragraph 19 of the New Framework for Agreement which, under the heading Constitutional Issues, states that the two Governments agree "...that future arrangements relating to Northern Ireland, and Northern Ireland’s wider relationships, should respect the full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos of both the unionist and nationalist communities there."

That striking and surprising concept, Northern Ireland’s wider relationships, presumably includes a relationship with the European Union; this relationship then also must "respect the full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos" of nationalists in Northern Ireland. Given the British Government’s responsibility for the whole of the United Kingdom in the European Union, and the necessity to implement EU policies and programmes through UK legislation and UK public expenditure, how, for instance, is the nationalist sense of allegiance to be respected in Northern Ireland’s relationship with the European Union? Clarification is needed, particularly in view of the statement by the British Government in the Framework for Accountable Government that "matters relating to the Crown, foreign affairs and defence" would remain at Westminster.

Paragraph 26 of the New Framework for Agreement deals with EU matters in the context of the proposed North/South body or bodies. To an extent what is stated is common sense - any EU matter relevant to the competence of either administration could be raised for consideration within the new supervisory North/South body. The paragraph continues:

"Across all designated matters and in accordance with the delegated functions, both Governments agree that the body will have an important role, with their support and co-operation and in consultation with them, in developing on a continuing basis an agreed approach for the whole island in respect of the challenges and opportunities of the European Union."

This is a very broad remit indeed. That there is scope, and need, for some degree of consultation and coordination between North and South with regard to European Union programmes is certainly arguable, though neither government has accorded it high priority in the past. But the language used in paragraph 26 suggests something more than a mechanism to facilitate closer and more coordinated approaches. The statement that the joint North/South body would "have an important role ... in developing on a continuing basis an agreed approach for the whole island in respect of the challenges and opportunities of the European Union" takes for granted that "an agreed approach for the whole island" is both appropriate and desirable. It may not be, given that Northern Ireland’s relationship with the European Union is through its status as a region of the United Kingdom, part of that member state’s economic, social and public expenditure framework, and therefore on a basis quite different to that of a small member state such as the Republic.

 

Island-wide

Paragraph 26 goes on to say that "in respect of matters designated at the executive level, which would include all EC programmes and initiatives to be implemented on a cross-border or island-wide basis in Ireland, the body itself would be responsible, subject to the Treaty obligations of each Government, for the implementation and management of EC policies and programmes on a joint basis". The meaning of this would seem to be clear in so far as it applies to cross-border programmes and initiatives. INTERREG programmes, and the Initiative for Peace and Reconciliation are obvious cases in point; INTERREG One, 1991-93 was jointly prepared and administered - in theory at least - by the Department of Finance in Dublin and the Department of Finance and Personnel in Belfast.

Under the Frameworks proposal any cross-border programme would be handled in a similar way by the new North/South body, on which those two departments would be represented anyway. INTERREG 2 itself says priority will given to actions promoting the joint planning and implementation of cross-border programmes, and the setting up of shared institutional and administrative structures to sustain and promote co-operation. In this respect the Frameworks are in line with the general EU approach to cross-border programmes. The Initiative for Peace, which is also cross-border, is setting aside 15% of its resources specifically for joint projects, and an indicative 20% of the funding is to go to projects in the border counties of the South. There wasspeculation that a special agency might be set up to administer the programme, rather than leaving it in the hands of the two departments. The Dublin Government backed this idea; the result would have been a cross-border executive to administer a programme 80% of which would be inside Northern Ireland, a most unusual procedure which has not, in the event, been followed.

Paragraph 26 is not just about cross-border projects. It lumps these together with programmes and initiatives which might be administered on an ‘all-island basis’. The cross-border concept in the EU is related to border regions; an ‘all-island’ programme in Ireland would include a border region of one member state alongside the entire territory of another member state, an arrangement without parallel elsewhere in the EU. The linking of a regional group in the South, say the six border counties, with the North might be a more logical path to follow.

European Union aspects of a whole range of policies and activities are mentioned as areas for potential harmonisation. The examples given suggest a very limited approach, but once again the possibility is left open for harmonisation on a very broad scale, though no attempt is made to say why such harmonisation would be beneficial, or how it would relate to the harmonisation of the relevant functions in Northern Ireland with those in the rest of the United Kingdom.

The stress on harmonisation in a European context is distinctly odd; the concept is discredited in European integration circles. It was a vogue of the 70s, much criticised by British Governments. The whole thrust of the Single Market programme of the 1980s and 1990s, much supported by British Governments, has been to abandon harmonisation except where absolutely essential to the open market, and to opt instead for mutual recognition and subsidiarity. For instance the "harmonisation" of teacher training between North and South in the island of Ireland is an illogical objective, when mutual recognition of teaching qualifications between the United Kingdom and the Republic is guaranteed under a 1989 European Directive. In practice that mutual recognition is of limited value as the Government of the Republic insists that a qualification in the Irish language is essential - even to teach metal-work to English-speakers - and has had recourse to the European Court to defend that position. There is no need for "harmonisation" of teacher-training to allow teachers to move freely within their profession throughout Ireland - just a relaxation of Dublin’s Irish language rule.

That example neatly illustrates why harmonisation was largely abandoned in pursuit of the European single market. The objectives of the market - free movement of goods, services, people and capital - were seen to be much more readily and efficiently attained on the basis of mutual recognition, than by the painful and interminable process of harmonisation.

 

Coordinated Approach

The section of the New Framework dealing with East-West Structures states that the Conference (the new Anglo-Irish Conference) will be a framework for consultation and coordination between both Governments and the new North/South institutions, where the wider role of the two Governments is particularly relevant to the work of those institutions, for example in a coordinated approach on EU issues. That sounds reasonable and unsurprising.

But the subsequent sentence raises the possibility of something much more substantial. It says:

"It would be for consideration by both Governments, in consultation with the relevant parties in the North, or with the institutions after they have been established, whether to achieve this through formal or ad hoc arrangements."

As with other references to the European dimension an apparently limited and realistic approach is accompanied by language which suggests a great deal more. Given the strong advocacy in recent times of very far-reaching and politically motivated proposals by the nationalist side, the Frameworks are sufficiently ambiguous to give grounds for suspicion that their authors are more concerned with a nationalist political agenda than they are with practical and sensible cross-border co-operation.

In a broader context the European Union is often cited as a model upon which an all-Ireland authority could be based. Considerable caution is needed here, for two reasons. The whole motivation of the European Union, the reason it was invented, is an ever closer union of its components, culminating in European unity, and its institutions and mechanisms are designed to forward that end. Its key principle is the sharing of authority, and, indeed, of sovereignty. Through the basic Treaties the various member states agree to give the institutions of the Union authority over agreed areas of common interest. It is, at European level, a system of joint sovereignty/joint authority. An all-Ireland arrangement based on the European Union would, therefore, have to be assumed to have Irish unity as its goal, achieved through a system of shared authority, and to be designed to promote this end.

Moreover the Union is a carefully balanced arrangement voluntarily entered into by its participating components - the member states - to promote integration. Within the Union the member states retain strong individual voices - Luxembourg has one seat on the Council of Ministers, just as Germany does. In the case of Ireland, the agreement would be between two states, the United Kingdom and the Irish Republic, and would not have as its purpose the integration of those two states, but the administration of one small region of one of those states. The cases are so totally different that it is illogical to suggest that the European Union provides any sort of model for the administration of Northern Ireland or for the creation of cross-border institutions between north and south.

The real relevance of the European Union is that within it the economies of the United Kingdom and the Republic are being progressively integrated, and that both states are part of a single market within which free movement of goods, services, capital and people is to be guaranteed. The economic and social inter-action between the Republic and Great Britain is far more significant than between North and South in Ireland and consequently the "challenges and opportunities of the European Union" require an agreed approach not for "the whole island", but rather for the two islands, and the two states.

This is not to rule out measures to improve North-South consultation and co-operation on European Union matters. One stark feature of the operation of the Anglo-Irish Agreement over the past ten years is that it never fostered any serious effort to coordinate the approaches of North and South to the structural funding programmes of the European Community. The first round, 1989-93 was based on plans drafted in Belfast and Dublin, and drawn up with no attempt at consultation or coordination. A prominent if hardly reassuring feature was that the Belfast plan included, as a key element in its transportation programme, the upgrading of the Belfast to Dublin railway line, while the Dublin plan omitted entirely any upgrading of the Dublin to Belfast railway line. The Belfast to Dublin road has long been designated a "Euro-route" with some priority in regard to funding from Brussels, but the two Governments singularly failed to agree on any comprehensive plan to upgrade it.

A mechanism, perhaps a committee, to facilitate regular consultation on European Union matters as they affect North and South could be a useful proposition. Where programmes are specifically cross-border, it could have a role beyond the consultative. But to suggest that it should have a mandate to develop an agreed approach "for the whole island" to the challenges of Europe is either foolish rhetoric or sinister politics.

 

7 PROTECTION OF RIGHTS

The short section towards the end of the Joint Framework Document headed "Protection of Rights" has attracted little attention. It proposes that both Governments give explicit undertakings to ensure "the systematic and effective protection of common specified civil, political and social rights" in both parts of the island, and also that democratic representatives from both jurisdictions in Ireland should adopt a Charter or Covenant reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in Ireland.

What is new here is an element of reciprocity. The Anglo-Irish Agreement mentioned the protection of human rights in Northern Ireland as one of its objectives, while in the Downing Street Declaration the Taoiseach accepted that the right of self-determination "by the people of Ireland as a whole" must, among other things, respect the civil rights of both communities. In the Brooke-Mayhew talks there was much mention of a Bill of Rights for Northern Ireland. But here fundamental human rights are to be guaranteed in both jurisdictions, though there is the rather basic qualification that these rights would be guaranteed "in accordance with its (each Government’s) constitutional arrangements". In other words no divorce, no abortion in the South unless and until the Republic’s constitution permits.

The common specified civil, political, social and cultural rights to be protected under this arrangement would have to be agreed "with the relevant political parties in Northern Ireland", and each Government would have to introduce appropriate legislation to give effect to such an agreement.

In addition the Charter or Covenant, proposed for the first time, would "reflect and endorse agreed measures for the protection of the fundamental rights of everyone living in Ireland", presumably those measures already legislated for in both jurisdictions. But beyond that, it is suggested the Charter would "pledge a commitment to mutual respect and to the civil rights and religious liberties of both communities". These rights would include rights to free political thought, to freedom of religion, the right to pursue democratically "national and political aspirations" and to seek constitutional change by peaceful means, the right to live wherever one chooses, and the right to equal opportunity in all social and economic activity, regardless of class, creed, gender or colour.

Just what purpose such a charter or covenant would serve is not clear. All the rights listed for inclusion are already promised under international agreements to which both Governments are signatories, and in other ways. Under the proposals made in the earlier paragraphs of this section of the Frameworks, they would be specifically legislated for in both jurisdictions. Is it suggested that the rights listed are not at present guaranteed?

The real point of this confused and seemingly pointless section is revealed in paragraph 32, which says the Charter might also contain a commitment to the consent principle, and a guarantee to the unionists to guarantee their "rights, interests, ethos and dignity" if circumstances changed and they found themselves a minority in an all-Ireland arrangement.

These rights, interests, ethos and dignity would be guaranteed and protected "to at least the same extent as provided for the nationalist community in the context of Northern Ireland under the structures and provisions of the new Agreement".

Reassurance of the unionists is clearly what this is all about. The use of the term Covenant is a bit transparent, but the intended message is that civil liberties for all in the island of Ireland will be guaranteed, whatever the constitutional arrangements, and that there will be yet another solemn affirmation of "the principle of consent in the relationships between the two traditions in Ireland".

Unfortunately there is no attempt to define more clearly what the principle of consent entails. Are both Governments, Dublin as well as London, stating that if Irish unity came about by consent, Northern Ireland would remain a separate entity within an Irish state, with the right to rejoin the United Kingdom if a majority of its inhabitants so desired? Will the Irish Government undertake to implement the necessary legislation to allow Northern Ireland to rejoin the United Kingdom as soon as a majority express that wish? Such questions may sound unreasonable, but without answers to them, the promised Covenant will reassure no one.

Even the apparently explicit promise to unionists of guarantees within an all-Ireland arrangement at least to the same extent as those offered to nationalists within Northern Ireland is presented in such a way as to invite cynicism. Unionists are promised protection of their "rights, interests, ethos and dignity" in a united Ireland. This is a new formulation, somewhat distinct from the usual assurances given to nationalists in Northern Ireland - it does not mention identity, it does not suggest that appropriate expression would be given to the identity of each of the two main traditions, it does not promise "parity of esteem", nor that the "full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos" of unionists would be given " secure and satisfactory political, administrative and symbolic expression and protection" in an Irish state. It does not promise a role for the British Government in Ireland parallel to that afforded the Irish Government in Northern Ireland under these proposals.

It may be that all these things are implied, but it would be helpful if they were spelled out. As presented in these proposals, the guarantee to unionists in an all-Ireland arrangement is in line with the guarantees afforded to any cultural, religious or national minority under a wide range of existing international agreements. On the other hand the guarantees to nationalists in Northern Ireland, and the institutional and other arrangements proposed to embody them, would seem to go further.

In 1984 the New Ireland Forum Report demanded for Northern nationalists the right to political expression of their Irish identity. This was obviously not merely a demand to engage in politics on a specifically Irish nationalist platform - such a right has always existed and been exercised - but something much more. The Forum indicated how much more when it referred to nationalist convictions "that justice and effective exercise of their rights can come only from a solution which transcends the context of Northern Ireland and which provides institutions with which they can identify".

Since the Forum Report it has become clear that "the right to political expression of an Irish identity" involves a demand by nationalists that the government of the independent Irish state, the Republic, must somehow be associated with the exercise of authority within the United Kingdom, as far as Northern Ireland is concerned, and that only in that way can "the national minority" in Northern Ireland accept the legitimacy of the United Kingdom state.

In the Anglo-Irish Agreement, the Downing Street Declaration and now in the Frameworks proposals, the British Government accepts this view that "parity of esteem" does indeed incorporate a right to political expression of an Irish identity which can be met only by some institutionalised role for the Irish Government in the affairs of Northern Ireland. As we noted in an earlier chapter, the stated justification in the Frameworks document for North/South institutions is "...to serve to acknowledge and reconcile the rights, identities and aspirations of the two major traditions", while the two Governments agreed that future arrangements must respect "the full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos" of both unionist and nationalists, and should give both "secure and satisfactory political, administrative and symbolic expression and protection". Parity of esteem in the present Northern Ireland context has therefore very broad and radical implications extending far beyond what might be assumed.

Positive measures already taken in Northern Ireland, notably in regard to Fair Employment, are fully in line with international agreements on the treatment of minorities. But nowhere in such agreements does there seem to be any articulation of a right comparable to that demanded for Northern nationalists in the New Ireland Forum Report and more recently in the Brooke-Mayhew talks - the right to political expression of their Irish identity – or any concept of parity of esteem remotely akin to that which is such a fundamental plank in the Frameworks proposals.

Such a formulation is not only not to be found in the corpus of international agreements on national minorities, it must be anathema to their whole purpose. The concession by one state of the right of another to "represent" in some way a minority within its own boundaries, or the ceding of a measure of authority over a "client" minority to a neighbouring state claiming ownership of disputed territory, is nowhere contemplated, and would no doubt be seen as a recipe for instability, especially when the national minority has ambitions to push beyond joint authority to full transfer of the territory. In that respect the joint approach to the problem in Northern Ireland has been running contrary to the broad European consensus on how to handle national minorities - a consensus which clearly sees the only answer as accommodation of those minorities within existing state boundaries, with all rights guaranteed.

Promoters in London and Dublin of the current consensus policy on Northern Ireland argue that their approach takes account of unique historical, political and geographical circumstances, reaching out for an imaginative settlement that goes beyond the mere accommodation of a reluctant minority. Certainly it is hard to see the "minority" in Northern Ireland as either an ethnic or a national minority, though the Secretary of State has so defined it. But the vital question remains - is this unique approach likely to provide the basis for a settlement, for an arrangement that will give political stability and security?

Two ambiguities weigh against this. The first is the argument that full and complete "parity of esteem" as seems to be advocated in the Frameworks, can surely only be provided under some system of joint authority. How else, realistically, can there be respect for the full and equal legitimacy of the identity and sense of allegiance of the two traditions? But the British Government, backed by Dublin, resolutely deny that joint authority is in any way involved. Northern Ireland remains part of the United Kingdom by dint of the wishes of a majority.

The second weakness is that the current proposals promise not a settlement but an arrangement which is explicitly dynamic, and which by inference looks towards some sort of constitutional rearrangement by consent. The core strength of the international approach to minority problems is that it has as its prime objective a settlement - a settlement based on current realities. It seeks means to enable all parties to make the best of those realities, mainly through guaranteeing cultural, social, economic and religious parity of esteem to minorities within their host countries.

Parity of esteem must, of course, be supported in Northern Ireland. There can be no explicit or implicit favouring or one religion over another, of one cultural emphasis over another, or even of one perceived identity over another. But when that parity of esteem is deemed to mean that "the sense of allegiance and aspiration " of the minority to a different constitutional arrangement must be given "secure and satisfactory political, administrative and symbolic expression and protection" all sorts of uncertainties arise. At the very least the two Governments need to spell out how they envisage this undertaking being implemented in practice. Is it their contention that the arrangements proposed under the Frameworks would actually achieve these ends?

It would be helpful too to have a clearer indication from Dublin that parity of esteem is reciprocal - that the Irish Government, and northern nationalists, would in return give full recognition to the legitimacy of Northern Ireland.

 

8  CONSTITUTIONAL ISSUES

Any overall settlement in Northern Ireland, the Frameworks document states, must offer a balanced accommodation of the differing views of the two main traditions on the constitutional issues in relation to the special position of Northern Ireland.

One distinguished, and objective, commentator, Sir David Goodall, sees this as meaning that any settlement must accord legitimacy to the aspirations of the nationalist community for the eventual unification of Ireland by consent, and ensure that nationalists are not treated as second class citizens in their own country, while on the other hand that aspiration will be pursued by northern nationalists "in ways consonant with full recognition of Northern Ireland’s continued status as part of the United Kingdom as long as the majority of its population so wishes". (Northern Ireland Brief, April 1995) Is such an accommodation possible, and do the Frameworks offer a basis for such an arrangement?

As discussed elsewhere in this booklet, the proposed North/South body or bodies and the new Anglo-Irish agreement are clearly designed to give practical substance to the recognition of the legitimacy of the nationalist tradition, and the proposals for administering Northern Ireland and for the protection of rights are intended to make any second-class citizenship impossible. While this falls short of the specific demands made in the Brooke-Mayhew talks, the proposals have been generally welcomed by nationalists.

In return unionists have the reiteration of the consent principle, and the promise of the Irish Government in paragraph 21 of the Joint Framework document to support changes in the Irish Constitution which "will fully reflect the principle of consent in Northern Ireland and demonstrably be such that no territorial claim of right to jurisdiction over Northern Ireland contrary to the will of a majority of its people is asserted, while maintaining the existing birthright of everyone born in either jurisdiction in Ireland to be part, as of right, of the Irish nation".

What realities underlie this commitment? It promises change, but is imprecise about what will be changed and how. At one stage in the negotiations between London and Dublin over the Frameworks agreement John Major is known to have insisted that the agreed document must contain the removal of the Republic’s territorial claim and that Dublin must recognise the legitimacy of Northern Ireland. The issue was raised at a meeting between the Prime Minister and the Taoiseach in Corfu, and became known as the "Corfu test". Does the wording in the agreed document pass the test?

In July 1994 Sir Patrick Mayhew said in an interview in the Daily Telegraph that he was satisfied that Dublin understood the centrality of the territorial claim. He continued:

"What unionists are looking for in order to gain more confidence is an abandonment of the territorial claim to the North expressed in terms that don’t need a constitutional lawyer to tease out the meaning and intent."

It was reported that Dick Spring, the Irish Foreign Minister, responded with "ill-concealed annoyance" to Sir Patrick’s remarks. Six months later the issue was still threatening to delay publication of the Framework, yet on the day there was no hint of difference. Who had given ground on the vexatious Articles?

The articles state:

Article 2: The national territory consists of the whole island of Ireland, its islands and the territorial seas.

Article 3: Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of applications as the laws of Saorstat Eireann.

Before it left office at the end of 1994 the Reynolds government was prepared to offer a revised formula as follows:

Article 2: The national territory consists of the whole island of Ireland, its islands and the territorial seas and is the shared inheritance of the people of Ireland, in their diverse identities and traditions.

Article 3.1: Accordingly, the re-integration of the national territory which is a primary, legitimate objective of the Irish people, shall be pursued only by peaceful means, and shall be achieved in a spirit of concord and conciliation only with the consent freely and concurrently given of a majority of the Irish people in each of the jurisdictions which are in that territory.

Article 3.2: Pending the achievement of the objective above referred to, the laws enacted by the Parliament and the executive powers of the Government shall have the like area and extent of application as the laws of Saorstat Eireann and the like extra-territorial effect.

This new wording represented some movement, but did not unambiguously pass the Corfu test, nor, by a long way, meet Sir Patrick Mayhew’s wish to dispense with the aid of constitutional lawyers. The Bruton Government may be willing to go further, and it is worth noting that in May 1995 Mr Bruton, at a meeting of the Forum for Peace and Reconciliation, did offer to remove the territorial claim., while on the same occasion the Fianna Faila leader did not go beyond the old undertaking to remove the claim to jurisdiction over the territory.

The crucial point is that in March 1990 the Chief Justice, Mr Justice Finlay, ruled in the Irish Supreme Court in the McGimpsey case that the words :"The national territory consists of the whole island of Ireland, its islands and the territorial seas" constituted a declaration of the extent of the national territory "as a claim of legal right". This unanimous ruling founded the territorial claim and the "constitutional imperative" towards Irish unity on Article 2, and on the same wording that remains in the proposed changes. In these the commitment to consent is in Article 3, and refers to the "re-integration of the national territory", not to the definition of it in Article 2.

The undertaking in the Joint Framework therefore remains ambiguous until the Dublin Government publishes its proposed amendments. Privately, Dublin Government officials reject the interpretation that the commitment in the Frameworks constitutes formal recognition of the legitimacy of Northern Ireland - just as Albert Reynolds, as Taoiseach, refused to concede that the Downing Street Declaration accorded a right of self-determination to Northern Ireland.

 

Conditional Undertaking

Moreover in the Frameworks document the Dublin Government’s undertaking to promote changes in the Constitution is a conditional one; it will come "as part of an agreement confirming the foregoing understanding between the two Governments on constitutional issues...". That understanding is outlined in the previous seven paragraphs, and includes acknowledgement of "the need for new arrangements and structures to reflect the reality of diverse aspirations, to reconcile as fully as possible the rights of both traditions, and to promote co-operation between them, so as to foster the process of developing agreement and consensus between all the people of Ireland". Also part of the understanding is the commitment by both governments that new arrangements and institutions in Northern Ireland and North/South "should afford both communities secure and satisfactory political, administrative and symbolic expression and protection", and that future arrangements "relating to Northern Ireland to Northern Ireland’s wider relationships, should respect the full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos of both the unionist and nationalist communities...".

In other words the Dublin Government will move to amend its Constitution only if the essentials of the Framework proposals as outlined are accepted by the main parties in Northern Ireland. This is a timid and unimaginative position, displaying more a horse-trading mentality than statesmanship.

The reality that Irish unification can come about only with the consent of a majority inside Northern Ireland has long been recognised by all the main parties in Ireland North and South, and by both the British and Irish Governments. Self-determination for Northern Ireland was Craig’s answer to De Valera in 1921, and was central to British policy right from partition. As early as 1959 the then Taoiseach, Sean Lemass was speaking of an "Ireland reunited by the agreement of its people" and urging Lord Brookeborough to enter into talks to achieve this end. If Lemass never formally and fully subscribed to the "consent" principle, he certainly acknowledged much more clearly than Irish nationalism had hitherto that it was the lack of consent rather than any other factor which sustained partition.

The outbreak of the Troubles in 1969 stimulated fresh thinking in Dublin. In that year Fine Gael, at the urgings of Garret FitzGerald and others, adopted a policy statement rejecting force and stating that "the only way in which the present divided state of the island can, or should be modified is with the consent of a majority of the people of Northern Ireland". The Labour Party did the same, and under Jack Lynch Fianna Fail moved in the same direction. At Sunningdale in December 1973 the Dublin Government fully accepted and solemnly declared that there could be no change in the status of Northern Ireland until a majority there so desired.

That declaration was challenged in the courts in Dublin, as was the corresponding clause in the 1985 Anglo-Irish Agreement, on the grounds that the status of Northern Ireland as defined in the Irish Constitution was that de jure it was part of the Irish state and only de facto and temporarily in another jurisdiction. The Constitution and the Supreme Court judgments based on it have somewhat clouded the meaning of the consent principle in nationalist eyes, and have served to confirm unionist suspicions that the Republic is not serious about consent. This ambiguity was perhaps best articulated by Jack Lynch as Taoiseach in the early 70s when he declared that while he accepted that unity could come only by consent, he could not concede the right of any section of the Irish people to secede from the nation.

In other words the "consent" principle meant little more than a practical recognition of the impossibility of forcing unification on a Northern majority totally opposed to it, rather than a recognition of the right of the people of Northern Ireland to self-determination. At the same time it was accompanied by an insistence that Northern Ireland had "failed" as a political entity, and that nationalists could not be expected to honour fully the consent principle unless the arrangements for governing Northern Ireland within the United Kingdom were modified substantially in the direction of joint authority with Dublin.

The Dublin Government maintained its rather restrictive view of the consent principle - that it applies only to the North’s agreement to Irish unity, but does not imply a legitimising of its choice to remain in the United Kingdom - in the Downing Street Declaration. There, significantly, it is only the Prime Minister, not the Taoiseach, who, reaffirms that he "will uphold the democratic wish of a greater number of the people of Northern Ireland on the issue of whether they prefer to support the Union or a sovereign united Ireland". The Taoiseach rather less explicitly reaffirms the guarantees his Government had given, "including Northern Ireland’s statutory constitutional guarantee".

In this respect the Frameworks document does seem to go further. In it the two Governments foresee a new agreement which will embody "recognition by both governments of the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland "with regard to whether they prefer to continue to support the Union or a sovereign united Ireland". It also, for the first time, contains that promise by the Dublin Government to change its constitution so that "no territorial claim of right to jurisdiction over Northern Ireland...is asserted".

But there are two key weaknesses in this. The first is that nothing is promised other than in the event of an overall settlement on the basis of the Frameworks proposals. The second is that the promise is to delete from the Constitution any "territorial claim of right to jurisdiction over Northern Ireland". That peculiar phrase does not promise the abandoning of the territorial claim as such, just a territorial claim of right to jurisdiction. In the Irish Constitution, as shown above, the territorial claim is based on Article 2, the definition of the national territory as the island of Ireland, and not on Article 3, which deals with the right of the Parliament and Government of the Republic to exercise jurisdiction over the whole island.

It would seem clear that right up to the conclusion of the Framework negotiations the Dublin Government was determined not to compromise the fundamentals of Irish nationalism - that there is one Irish nation, and that its territory is the whole island of Ireland. As in all Anglo-Irish negotiations of the past decade, the British Government has gone to great lengths to accommodate those beliefs within the proposals. That makes acceptance of the Frameworks difficult for those who can endorse neither assertion.

 

9 CONCLUSION

The key purpose of the Framework proposals, what they are all really about, is summed up in a short passage from Annex B. In the event of a settlement based on them there would be -

"... a shared understanding of the constitutional issues, which achieved a balanced accommodation of the differing positions of the two main traditions."

It is the pursuit of this "balanced accommodation" on the constitutional issue which has occupied British policy for at least the past ten years. The "shared understanding" may already exist, expressed in the frequently articulated policy of consent. London, Dublin and all the main constitutional parties, North and South, now, it would seem, share the understanding that Northern Ireland is part of the United Kingdom because that is the wish of a majority of its people, and will remain so for as long as a majority so wish. Part of that "shared understanding" is also the acknowledgement that there is a minority within Northern Ireland who wish to take the province out of the United Kingdom and into a united Ireland.

The problem has been, and remains, translating that shared understanding into a balanced accommodation of what are two diametrically opposed positions. To some it might seem that the British Government’s declaration of no selfish interest in Northern Ireland, and its readiness to implement the wishes of a majority if that majority should ever decide in favour of Irish unity, accompanied meanwhile by full parity of esteem for a minority within Northern Ireland in accordance with international agreements, would be the maximum accommodation possible. But neither the SDLP nor the Dublin Government let alone Sinn Fein, has ever accepted that this is indeed "a balanced accommodation". Something more has always been sought. In the Framework proposals the British Government is clearly trying to deliver that something.

In his introduction to the Frameworks document John Major links the proposals to the inter-party talks in the course of which, from 1991 on, the Governments and the four main parties in Northern Ireland were pursuing the agreed aim of "a new beginning for relationships within Northern Ireland, within the island of Ireland and between the peoples of these islands". Mr Major does not say it, but the new beginning was necessary because an earlier new beginning, the Anglo-Irish Agreement of 1985, had not worked. It had failed what is now acknowledged by both Governments as a key test of any arrangement in Northern Ireland - it did not have widespread acceptability. It was repeatedly and emphatically rejected by a clear majority of the population. Nor did it satisfy the aspirations of nationalism, and, at least for nine years, it did not dissuade the IRA from terrorism; rather it helped produce a new, virulent, loyalist terror.

The Talks process was all about either replacing or transcending the Anglo-Irish Agreement, through inclusive dialogue. But there was also at that time a less obvious agenda - contacts with the IRA with a view to ending violence. This hidden "fourth strand" assumed rapidly increasing importance and profile with the Hume-Adams dialogue, and by the time of the Downing Street Declaration in December 1993, was the dominant factor in the approach of both Governments to Northern Ireland. The IRA cease-fire at the end of August 1994 ensured that the ongoing Anglo-Irish negotiations on the promised framework were at least as much concerned with responding to and prolonging the IRA cease-fire as with a long-term political settlement.

That is a key part of the background against which the proposals of February 22, 1995 must be assessed. It has been suggested that most of what is contained in the Frameworks, particularly on North/South institutional arrangements, is "necessary nonsense", that is grand sounding but essentially unimportant measures the main purpose of which is to keep Sinn Fein and the IRA on board the so-called peace process. Given that an end to violence must be everyone’s top priority, then the proper response, even for unionists, must be to go along with the proposals, safe in the knowledge that they contain no real threat to Northern Ireland’s constitutional position, and offer no more than a token role for Dublin through the new North/South arrangements.

If in return for that Irish nationalism as represented by the Dublin Government and the SDLP delivers an end to the territorial claim and a recognition of Northern Ireland’s legitimacy as a region of the United Kingdom by virtue of democratic choice, then unionists should think hard before rejecting the deal.

But as we have suggested in this booklet, there are grounds for caution about such an analysis. Not least of these is the ambiguity over what the Dublin Government has or has not undertaken to deliver on Articles 2 and 3 of the Irish Constitution. The Frameworks document would have been strengthened had it contained a much clearer indication that Article 2 - the definition of the national territory as the island of Ireland - will be dropped, and if it had also contained an explicit affirmation of the legitimacy of Northern Ireland as a region of the United Kingdom by virtue of the majority will of its citizens, repeatedly confirmed at the ballot box.

Another ground for caution is the logic of the analysis which underpins the Frameworks. The most striking aspect of this analysis is that it is the same as that upon which the Anglo-Irish Agreement was based. At its core is the contention that nationalists in the North have a right to political expression of an Irish identity, and that this must be satisfied by institutionalising a role for the government of the independent Irish state in the affairs of Northern Ireland.

The current Frameworks differ in approach from the Anglo-Irish Agreement only in so far as the main emphasis is on the creation of cross-border structures, not on a direct role for the Government of the Republic in the administration of Northern Ireland. The allocation of areas of public administration in Northern Ireland to joint North-South bodies for executive, harmonising or consultative purposes is to be the new way of allowing nationalists political expression of their Irish identity. Just how broad these areas are remains to be seen; the British Government, through Michael Ancram in a Northern Ireland Brief Article in April 1995 suggests they will be quite limited.

This could be seen as a positive change. It offends less against the principles of representative democracy than giving the Government of another jurisdiction a formal, albeit advisory, role in the administration of Northern Ireland, as under the Anglo-Irish Agreement. As the Cadogan Group has argued before, there is an all-island dimension to many aspects of life in Northern Ireland, and giving institutional form to this where there is clear and mutual advantage north and south may be both sensible in practice and useful in allowing greater scope for expression of a non-political Irish identity.

On the other hand the transfer of various functions to joint North/South bodies would do nothing to remedy the democratic deficit from which Northern Ireland currently suffers; it would, at the very least, obscure the lines of accountability between the decision-makers and the citizens of Northern Ireland. Control over some Northern Ireland matters could pass to a body half of which would represent the government of another state.

But the reality is that this new north-south element is bolted on to the existing Anglo-Irish arrangements; it is not an alternative or a replacement. The "new and more broadly-based" East-West agreement will maintain the Intergovernmental Conference which "will provide a continuing institutional expression for the Irish Government’s recognised concern and role in relation to Northern Ireland". All the indications are that this "role" is precisely the same role as that afforded under the Anglo-Irish Agreement, and which has been the main cause of the rejection of that Agreement by a clear majority in Northern Ireland.

 

Missing Dimension

The almost total absence of explicit reference to the United Kingdom in the Frameworks has been widely noted. The very first paragraph of the introduction declares that the British Government’s main political objective is "to bring about a comprehensive settlement which would ...take full account of Northern Ireland’s wider relationships with the rest of the United Kingdom and the rest of the island of Ireland". Such a formulation seems to place these two sets of relationships on a comparable if not equal footing. But they are not - Northern Ireland is part of the United Kingdom, politically, economically, administratively, commercially. It is close neighbour to the rest of the island, with many ties to it, but the relationship is of an entirely different nature.

The United Kingdom dimension is generally missing throughout the document. For instance on the North/South bodies which will have executive and harmonising functions there is no reference as to how such exercises might dovetail into existing United Kingdom practices. It must be presumed that haromnisation would have to be on the basis of the Republic in many cases harmonising with United Kingdom practice, and that in no instance could sharing authority with the Republic, or harmonising with it, be at the expense of existing arrangements within the United Kingdom. It must be presumed, because it is not even discussed in the Frameworks.

Even in such a fundamental area as the economy, the United Kingdom dimension is missing. The remit of the new North/South body, according to the proposals, is to be dynamic, developing to keep pace with greater integration between "the two economies". Which two economies? The Northern Ireland "economy" is only a regional economy within that of the United Kingdom, into which it is fully integrated. It may well be possible to promote greater economic integration in the island of Ireland and between the two islands, taking full account of the United Kingdom economy, but the document has nothing to say on this.

In all this talk of sharing, co-operating and harmonising on the island of Ireland no account seems to be taken of the reality of the United Kingdom of Great Britain and Northern Ireland. Since 1921 and more particularly since 1972, Northern Ireland and society in Northern Ireland have been drawn more closely into the United Kingdom orbit - socially, culturally and economically, if not in terms of political organisation. At the same time the South has been making a conscious effort to distance itself from things British - culturally and economically . In some ways the gap that opened between North and South in 1921 has widened and is still widening. These are realities of which the Frameworks seem unaware.

Tactically the objective of the Frameworks may simply be to concede a green rhetoric so that nationalists may more easily accept the substance of a partition settlement. The fact remains long-term deep-rooted historical trends cannot be wished away.

Although the major objections to the Frameworks focus on the proposed North/South arrangements, the suggested internal administration of Northern Ireland has achieved a remarkable level of unacceptability. It is remarkable because the administrative proposals were devised by the British Government alone on the basis of lines more or less agreed by all parties, except Sinn Fein, in the 1992 talks. The weakness here is that the British Government appears to have made little effort to remedy the impracticalities embodied in the proposals of the Northern Ireland parties, few of whose members had much practical experience of administration.

As the end product of the best political and democratic efforts of the two Governments, the Framework proposals are a profound disappointment. They come at a time when fresh thinking combined with realism is desperately needed to help Northern Ireland move out of insecurity and instability, yet they offer vagueness, seemingly unworkable mechanisms, and an apparent reluctance to move any significant distance away from the flawed, and essentially nationalist, analysis they have shared for most of the past decade.

London’s dilemma is that having agreed a basic approach with Dublin - and with moderate nationalism - and having sold that policy very successfully to the wider diplomatic world, it is extremely reluctant to consider the possibility that the problem remains unresolved because the policy is flawed.

There is also, of course, the matter of the IRA and the terrorist threat. In practice British Government thinking on Northern Ireland is driven by short-term considerations. Ambiguous policy appearing to face in both directions is seen as helpful in maintaining the cease-fires. If Republicans continue to sense even the possibility of achieving their ultimate political aims they are more likely to refrain from violence. Best of all if an agreement can be struck between all parties which can continue in future to be ambiguous then Republicans might remain in democratic politics indefinitely without risking a resumed loyalist insurrection.

This would be in the tradition of British Government policy on Northern Ireland. As a form of appeasement it is based on the hope that nationalists will settle for minor gains and put their long term aspirations on ice long enough for genuine consensus to emerge within Northern Ireland. Fundamental principles tend to get in the way of such a policy. It could be argued that the Framework documents should be taken with a pinch of salt as a piece of studied ambiguity designed to achieve the short-term objective of preserving the cease-fire. Those most offended by it, the unionists, should remind themselves that the fundamental principles of consent and widespread acceptability - never mind about parity of esteem - remain as their long-term safeguards.

But governments should be aware of the damage that can be done to the long-term prospects for a real settlement by fudging or bending principles in order to dissuade extremist groups from returning to violence. Appeasement now may well help preserve the peace of the cease-fires, but could in the longer term make the achievement of a permanent settlement much more difficult, having, meanwhile, gone some way to illustrating that violence pays, even if payment is delayed until the guns are silent.

Do the Framework proposals fully respect the fundamental principles of consent, parity of esteem and widespread acceptability? As we have discussed, judgment on consent may have to await the Republic’s moves on its Constitution. If consent is interpreted as merely respecting a majority’s right to resist Irish unity, rather than fully recognising the legitimacy of that majority’s choice to be within the United Kingdom, there is ambiguity.

If parity of esteem is interpreted as meaning that a nationalist minority in Northern Ireland has a right to political expression of their Irish identity through involvement of the Dublin Government in the affairs of Northern Ireland, then it is an Irish solution to an Irish problem, and not parity of esteem as defined by international convention.

The extent to which the Framework proposals reflect the principles of consent and parity of esteem is open to debate. The third principle espoused by the two Prime Ministers - widespread acceptability - is a practical examination the proposals will either pass or fail. At the moment, and in their present form, they seem doomed to failure. In Annex B the British Government says it would accept "a range of outcomes" other than along the lines of the Framework proposals from further inter-party talks provided that any outcome was broadly acceptable. It is that range of other outcomes that now needs energetic exploration.

 

Where do we go from here?

Whether or not the Framework proposals are accepted as a basis for all-party talks they provide a starting point, and a focus, for discussion. In what ways must they be modified, changed, transcended if they are to offer any hope of being the basis of a settlement? If a settlement along other lines is to be sought, what useful elements can be salvaged from them? Can the broad institutional proposals be worked upon, and the pages of dubious political theory jettisoned? Where do we go from here?

  • The Framework for Accountable Government would appear unworkable, and has been so judged by many across the community. But it should not be impossible to refashion it to provide a local assembly which could exercise a measure of democratic scrutiny and control over the administration of Northern Ireland. Safeguards against the abuse of power by a permanent majority can be devised short of the highly impractical three-man Panel, and there remains the idea of a power-sharing executive, which failed before more because of external circumstances than intrinsic weakness.
  • There is an all-island dimension to many aspects of life in Northern Ireland, and giving some institutional expression to this could be beneficial in allowing greater scope for expression of an Irish identity. But the creation of North/South bodies with executive or harmonising functions should be contemplated only where there is clear mutual benefit, where no "disharmonisation" between Northern Ireland the rest of the United Kingdom results, and where lines of democratic accountability are clear. Such bodies should not be seen as a means of associating the Government of the Republic with the administration of Northern Ireland.

The New Framework for Agreement leaves the Anglo-Irish Agreement intact, thereby failing to address the key issue in the Brooke/Mayhew talks. If the two Governments are serious about winning widespread acceptability for any proposals they must be seen to offer changes that go well beyond the possibility of allowing local participation in the workings of the Agreement. The mandate of the Intergovernmental Conference should be modified to make it fully reciprocal, applying to both parts of Ireland; it should not be a vehicle for giving Dublin an advisory role in the administration of Northern Ireland. The Maryfield Secretariat should be closed.

  • Articles 2 and 3 of the Irish Constitution must go. Replacement articles should not assert any claim to the territory of Northern Ireland. The two Governments should unequivocally affirm the legitimacy of Northern Ireland’s status as part of the United Kingdom by virtue of the will of a majority of its people.
  • Both Governments should guarantee that any minorities within their jurisdictions will be accorded all rights and protections, and full parity of esteem, as outlined in the various international agreements to which they both are parties.

Underlying the application of each of the above points is the principle of durability. With the cessation of violence we have a historic opportunity to settle a historic dispute. Any agreement should thus be a settlement and not merely a means of weakening one side’s position with an eye to further constitutional change at a later date. The word "dynamic" , or even "agreed dynamic" and the concept represented is problematical. Further movement is implied, rather than a settlement here and now.

It seems to us that many in the nationalist camp, both North and South, are reluctant to accept the need for a settlement. The idea of a cross-border Council of Ireland was revived in 1972 by the SDLP precisely and overtly as an interim stepping stone to Irish unity. There is little in the Framework proposals to suggest that the purpose of cross-border institutions today is, from a nationalist perspective, any different.

If a genuine and lasting settlement is to be reached, the objective of Irish unity must be shelved. The abandonment of Articles 2 and 3 will symbolise this change, but will not in itself be sufficient. The nationalist parties, North and South, will themselves have to affirm their acceptance of a genuine settlement - that is they will have to accept the legitimacy of Northern Ireland as part of the United Kingdom by virtue of the will of a majority of its people. In practical terms this will mean that diplomatic and other pressures to undermine Northern Ireland’s status must cease.

These stipulations may seem to many unrealistic in the present circumstances, when emotions are still raw after 25 years of continuous violence. The approach of the two Governments is to fudge and evade those questions which are judged too difficult. Understandable as that may be, it does not, and will not, provide the basis for a settlement, although it may well help to copper-fasten the cease-fires.

While the ambiguous and evasive language of the Framework proposals may form the limits of what is currently feasible politically, it will not, in our view, form the basis of a lasting settlement. The two Governments have in their desire to secure peace gone too far, rhetorically at least, in raising nationalist expectations and in legitimising unrealistic and unattainable nationalist goals. In doing so they have undermined one of the necessary pillars of any real agreement, the genuine acceptance by nationalists of the principle of consent. The ball is now in the nationalist court; without some indication of the possibility of a genuine settlement, unionists will remain much too suspicious to engage in real dialogue.

As this booklet makes clear, we regard many of the Framework proposals as nonsense when judged in terms of fair, practical and effective administration. We find the political analysis and the general tone of Frameworks for the Future erroneous and even foolish when not vague and ambiguous. Nevertheless we accept that the basic elements of the proposals - an assembly with safeguards, significant cross-border institutions, and a new UK-Ireland agreement - are necessary ingredients of a genuine and durable settlement. Unionists should be prepared to work towards such an agreement. Nationalists, encouraged by the language of the Frameworks and of the Downing Street Declaration, may be less willing to agree to any settlement which can truly be called durable.

 

Unique Opportunity

What we advocate is compromise, by which we mean not a fudging of principles, but a reconsideration of historic stances, and concessions by both sides on the practical arrangements necessary for a settlement. The two Governments define the problem as between the traditions of nationalism and unionism in the island of Ireland. The first great compromise came in 1921, when four-fifths of the island went the way of nationalism, and one fifth remained unionist, and when disappointed unionist and nationalist minorities found themselves either side of the Border. Unionists had to compromise further in accepting for Northern Ireland an exceptional status within the United Kingdom - devolution - which they did not want, and which has ever since been deemed unsuitable for any other region.

Now they must accept further compromise - the sharing of authority with the nationalist minority community in Northern Ireland, the creation of cross-border institutions, and the continued existence of some form of London-Dublin agreement. At the time of writing it seems likely that the unionist community will prove unwilling to accept this further compromise in the form in which it is proposed in the Frameworks. Two things should now happen. The nationalist side must also compromise with the acceptance of the reality and durability of partition. In order to avert further mistrust and instability, the British Government should also begin to accept the wishes of the majority in its rhetoric and in its aims. The Government has no aims of its own for Northern Ireland - other than peace and stability - but in accepting the principle of consent it takes on the aims of the greater number, both Catholic and Protestant, to maintain the Union. It should now attempt to move away from the ambiguity of the ceasefires and take a leadership role towards accepting the verdict of the people of Northern Ireland.

The two Governments offered the Frameworks, not as a blueprint, but for consideration and discussion. Close consideration of them does not confirm the view, expressed in the document. that they have potential for securing general agreement. Nor does the trend of public discussion in Northern Ireland. The Frameworks for the Future are at points vague, confusing and, in our view, mistaken. There is now an onus on the Governments to look again, to show both flexibility and a willingness to confront reality. Otherwise we may lose what John Major has called a unique opportunity to lay the foundations of a lasting peace.