Good Friday for the profession
26 May 1998
12 June 2014
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Conor Quigley explains the Good Friday Agreement and its implications for the profession throughout Ireland and beyond. Conor Quigley is a barrister at Brick Court Chambers.
Lawyers will find much of interest in the Good Friday Agreement concerning a constitutional settlement for Northern Ireland. Legal ripples from the agreement will spread throughout Ireland, of course, but no doubt they will also have some impact on lawyers in Britain, in particular those with Irish dealings.
The establishment of a British/Irish Council, covering the totality of arrangements within these islands, may also have far-reaching effects for English, Scottish and Welsh lawyers, regardless of Irish connections. The agreement sets out the basis for future legislative and administrative action in Northern Ireland, some of which will be of particular concern to the vigilant lawyer.
The agreement provides for an assembly, capable of exercising executive and legislative authority, subject to safeguards to protect the rights and interests of all sides of the community. Key decisions of the assembly will require cross-community support. The assembly will exercise full legislative and executive authority in respect of those matters currently within the responsibility of the Northern Ireland government departments - for example, agriculture, education, health and environment. It may take on responsibility for other matters at later stages.
At their first meeting, members of the assembly must identify themselves as nationalist, unionist or other and will select committees for each of the main executive functions, membership being proportionate to party strength. The committees will have a scrutiny, policy development and consultation role, as well as a role in initiation of legislation.
The executive will consist of a First Minister, a Deputy First Minister and up to 10 other ministers. The First Minister and Deputy First Minister are elected jointly on a cross community basis, the other ministers being selected proportionate to party strength. A party may decline to serve in the executive. As a condition of appointment, all members of the executive must take a pledge of office, undertaking to make the system work and to abide by a code of conduct. It is not clear whether the courts will be entitled, on the application of a disgruntled individual, to declare that a minister has broken this pledge, or whether that is solely a matter for the assembly's internal systems.
Legislation may be adopted by the assembly in any of the devolved areas. However, in those areas, such as company law, where there has traditionally been equivalent UK-wide legislation, the assembly may opt for Northern Ireland provisions to continue to be included in British legislation. The assembly will also have authority to legislate in reserved areas with the approval of the Secretary of State and subject to parliamentary control. Any disputes over legislative competence will be determined by the courts.
Westminster (whose power to make legislation for Northern Ireland remains unaffected) will continue to legislate in non-devolved areas and to ensure that the UK's international obligations are met in respect of Northern Ireland. The Northern Ireland Grand and Select Committees will continue to scrutinise the responsibilities of the Secretary of State.
All the institutional and constitutional arrangements in the agreement are interlocking. Substantial agreement has been reached on the establishment of all-Ireland relationships, giving rise to a form of joint sovereignty. A North/South Ministerial Council, with membership drawn from the Northern Executive and the Irish government, will develop consultation, cooperation and action on an all-Ireland basis on matters of mutual interest. The council must use its best endeavours to reach agreement on the adoption of common policies, in areas where there is a mutual cross-border benefit. While these policies may be implemented separately by the Irish and Northern Irish administrations, there is, in certain cases, a requirement to delegate these implementing powers to self-standing implementation bodies which would act independently on an all-Ireland basis. In the first instance, these implementation bodies, will cover some very important matters, such as environmental protection, urban and rural development, transport planning and tourism. Lawyers will no doubt find considerable opportunity for applying their skills, both in advising clients on the operation of these bodies and in bringing proceedings in appropriate cases.
Control over the implementation bodies will be effected by the courts. The agreement is silent, however, on which courts have jurisdiction. For instance, if a body has its main office in Belfast, but takes a decision affecting a business in Drogheda, do the courts of the North or the South have jurisdiction? Or both? Will the courts of each jurisdiction follow the decisions of courts in the other? Could the substantive decision be made in one jurisdiction and enforcement of that decision by the courts of the other jurisdiction? What happens where different decisions are adopted north and south of the border? There is no provision in the agreement concerning reconciliation of conflicting judgments.
A standing British Irish InterGovernmental Conference will replace the Anglo-Irish Agreement of 1985. This conference will bring together the British and Irish governments to promote bilateral cooperation at all levels on all matters of mutual interest within the competence of both governments. In recognition of the Irish government's special interest in Northern Ireland and of the extent to which issues of mutual concern arise in relation to Northern Ireland, there will be regular meetings of the conference concerned with non-devolved Northern Ireland matters. The conference will address, in particular, the areas of rights, justice, prisons and policing in Northern Ireland.
A new body, with potentially far-reaching influence, is to be formed. Membership of the British/Irish Council will comprise representatives of the British and Irish governments, devolved institutions in Northern Ireland, Scotland and Wales (and possibly the English regions) as well as representatives of the Isle of Man and the Channel Islands. While the council is required to exchange information, discuss, consult and use best endeavours to reach agreement on matters of mutual interest, it may go so far as to reach agreement on common policies or common actions. Such action will most likely concern, in the first instance, transport links, agriculture, environment, cultural issues, health and education, as well as approaches to EU issues.
It should be noted that individual members of the council may opt not to participate in the common policies and common action. Thus, the situation could easily arise whereby the council is a forum for, say, Manx, Scottish and Welsh agreement on a particular issue (for example, environmental matters in the eastern sector of the Irish Sea), without any Irish involvement.
The agreement is silent as to whether such common policies or actions will themselves be susceptible to judicial review, or whether such control by the courts would be reserved solely for implementing actions by the respective members of the council. At the very least, agreement reached in the council could be used to interpret implementing policies. Could there be a requirement for the courts to strike down action which is inconsistent with the agreed common policies? In the context of the EU, it raises particularly interesting legal questions, such as whether the council could bind the governments in their conduct of negotiations in the EU Council of Ministers.
The assembly and public bodies in Northern Ireland will be subject to the European Convention on Human Rights and a supplementary Bill of Rights, which will be incorporated into Northern Ireland law. There will be direct access to the courts and remedies for breach of the convention. A Human Rights Commission will be established.
A statutory obligation will be imposed on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion, gender, race, disability, age marital status, dependants and sexual orientation. An Equality Commission will be established (replacing the Fair Employment Agency and other equality bodies in Northern Ireland) to monitor equality of opportunity.
Clearly, the establishment of a highly complex constitutional control on executive and legislative action in Northern Ireland will require lawyers to brush up on general principles of constitutional law which have until now (except perhaps for lawyers in the Republic and those regularly involved in EU law) not been part of daily practice. Lawyers throughout Ireland and beyond have much to gain from a careful reading of the agreement.
The parties to the agreement affirmed, in particular:
the right to free political thought;
the right to freedom and expression of opinion;
the right to pursue democratically national and political aspirations;
the right to seek constitutional change by peaceful and legitimate means;
the right to freely choose one's place of residence;
the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;
the right to freedom from sectarian harassment;
the right of women to full and equal political participation.