The
Belfast Agreement, Sovereignty and the State of the Union.
Brigid Hadfield
Professor of Public Law, The Queen's University of Belfast.
[1998] Public Law. WINTER (c) SWEET & MAXWELL AND CONTRIBUTORS
Those provisions of the Belfast Agreement' which are now contained in sections
1 and 2 of and Schedule 1 to the Northern Ireland Act 1998 concern the status
of Northern Ireland, the repeal of the remaining sections of the Government
of Ireland Act 1920 (including section 75 on the "supreme authority" (2)
of the Westminster Parliament) and the impact of the 1998 Act itself on
previous enactments. These previous enactments are not identified but clearly
may include the Act of Union itself. (3) These provisions, which have been
carried over verbatim from the Agreement to the Act, have been the subject
of a range of interpretations from key participants in the political negotiations,
which interpretations may essentially be encapsulated in two broad positions.
The first broad position favours an interpretation which regards the Agreement/Act
as weakening the Union between Great Britain and Northern Ireland. So, for
example, the Taoiseach, Mr Bertie Ahern, has said that: "The British government are effectively out of the equation". (4) Mr Martin McGuinness, of Sinn Féin, has said: "We fought for and got the repeal of the Government of Ireland Act which underpinned the union, and insisted that other relevant legislation, including the Act of Union and the N.I. Constitution Act of 1973 be repealed or rendered inoperable by any new Act". (5) Mr Gerry Adams, in his Presidential
Address to the (reconvened) Sinn Féin Ard Fheis in May 1998, said of the
repeal of the 1920 Act and the changes to "previous enactments": "There is now no indefinite commitment, no raft of Parliamentary Acts to back up an absolute [British territorial] claim" to Northern Ireland, which claim has now been reduced, Mr Adams said earlier in his speech, to the "one hinge" of the will of a majority of the people in Northern Ireland. (6)
The second broad interpretation is that largely articulated by the Ulster
(or Official) Unionist Party, and specifically by its leader, Mr David Trimble,
and draws not only on the wording of sections 1 and 2 of the 1998 Act but
also on the Agreement's proposed changes to Articles 2 and 3 of the Irish
Constitution 1937. Articles 2 and 3 currently define the national territory
as the whole island of Ireland and, pending the reintegration of the national
territory, re-integration is to be regarded as a "constitutional imperative".
(7) The changes to be wrought to Articles 2 and 3 were overwhelmingly approved
by the electorate of the Irish Republic in a referendum held on May 22,
1998 (8) and will come into force concurrently with the key provisions of
the Northern Ireland Act 1998 and the new British-Irish Agreement. In essence,
the new Article 2 will define the Irish nation not in terms of territory
but in terms of the people: "It is the entitlement of every person born in the island of Ireland...to be part of the Irish nation". Article 3 articulates
the will of the Irish nation to unite all the people who share the territory
of the island of Ireland (in all the diversity of their identities and traditions),
whilst recognising-for the first time since 1937-that a united Ireland can
only be brought about with the consent of the people "democratically expressed in both jurisdictions in the island". These various provisions, both concerning
the Irish Constitution and as contained in sections 1 and 2 of the 1998
Act, have enabled an agreement to be presented that the Union between Great
Britain and Northern Ireland has been thereby strengthened not weakened. |
