By Dr Austen Morgan
When Sinn Fein leader Gerry Adams yesterday told that Prime Minister that any agreement with the Democratic Unionist Party (DUP) would be in breach of the Good Friday Agreement, he was wrong.
Theresa May’s slowly gestating confidence and supply agreement with the Democratic Unionist Party (‘DUP’) is not unlawful and is not prohibited by the 1998 Belfast Agreement (often called the Good Friday agreement).
Any United Kingdom (‘UK’) government lacking an overall majority is free to enter into coalition talks with a minority party. And the DUP ten is such a minority party at Westminster, even if its MPs come from Northern Ireland and are happiest there.
In December 2016, Northern Ireland, Scottish and Welsh nationalists intervened in the Supreme Court case on Article 50. The point was taken that the Belfast Agreement prevented the UK leaving the European Union. The devolutionists lost eleven/nil in January 2017.
That did not stop Gerry Adams leading a Sinn Féin delegation out of Number 10 on Thursday, to tell the press – after the Prime Minister – that the UK was in breach (again) of the Belfast Agreement: ‘we told her very directly … and we itemised those matters in which she was dilatory or in default in relation to that agreement.’
Yet Adams did not refer to any provisions in the 44 pages of Treaty Series No. 50 (2000), Cm 4705.
The Belfast Agreement of 10 April 1998 is a bilateral international agreement, the other party being the Republic of Ireland. International law provides: ‘A treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’
The purpose of the Belfast Agreement was to end the Northern Ireland troubles, with a new form of devolution plus north-south and east-west add-ons; Stormont had continuous government in 2007-17, but it was brought down in January with Martin McGuinness’s resignation on the ground of ill health (he died in March).
The Belfast Agreement actually contains two accords. The first is the load-bearing UK-Irish agreement (pp 1-6), which was signed by Tony Blair and Bertie Ahern at Castle Buildings on the edge of Belfast (thus the name).
Nothing in this short agreement – giving ordinary meaning to the words – prevents the UK government talking to the DUP about the consequences of the general election.
Article 2 of the UK-Irish agreement begins: ‘The two Governments affirm their solemn commitments to support, and where appropriate implement, the provisions of the Multi-Party Agreement.’ Note: where appropriate implement, the three most important words in the Belfast agreement.
The multi-party agreement (pp 7-43) – most of the text – is a political agreement. It was made by the Northern Ireland parties. However, the UK and Irish governments also participated, and certain provisions of the multi-party agreement, binding upon London and/or Dublin, may be construed by lawyers as legal obligations (one such is the requirement that the Republic of Ireland have ‘at least an equivalent level of protection of human rights’ as the UK).
Sinn Féin, it is rarely observed, did not vote for the Belfast agreement, when invited to do so by the chair, Senator George Mitchell, on Good Friday in 1998. Gerry Adams said: ‘we will let you know’!
Nothing in the declaration of support (p 9) in the multi-party agreement prevents the UK government talking to the DUP. However, paragraph 4 caused difficulties for Sinn Féin: ‘We reaffirm our total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues, and our opposition to any use of threat of force by others for any political purpose, whether in regard to this agreement or otherwise.’
The constitutional issues section (pp 10-13) is the most relevant. This includes draft UK legislation (later section 1 and schedule 1 of the Northern Ireland Act 1998). Here, the secretary of state for Northern Ireland is required, ‘if at any time it appears likely to him’, that a majority would vote to join a united Ireland, to hold a border poll.
There has been a rumour that the DUP was seeking to have no border poll (or referendum on the status of the Province) in the agreement with the government. That could be unlawful, if it attempted to get round the Secretary of State’s statutory duty to keep his eyes open. There is no prospect of a border poll any time soon, and the Northern Ireland Office would advise number 10 as to the words – if this point is relevant at all – which would avoid illegality: the UK government does not envisage holding a Northern Ireland border poll in the current parliament might work?
Strands one, two and three (pp 14-28) on the institutions contain no prohibitions on the DUP (which walked out of the multi-party negotiations in July 1997) talking to the government about keeping Theresa May in office. The DUP did not have the opportunity to vote against the Belfast agreement, but it came to work it when the late Dr Ian Paisley became first minister with Martin McGuinness as his deputy.
The same point (no prohibition) applies to the from terrorism to democracy provisions (pp 29-41) – rights, safeguards and equality of opportunity, decommissioning, security, policing and justice, and prisoners – which complete the multi-party agreement.
If a DUP/Conservative agreement is unlawful, perhaps its critics should follow the example of Gina Miller and challenge in the High Court in London. Then we could see who is acting in bad faith: Gerry Adams or Theresa May?