'Implementing the Agreement' - launched by the Ulster Unionist Party, 8 October 1999
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1.1 The purpose of this Paper is twofold. First, it seeks to measure the extent to which the Belfast Agreement has been implemented. Second, and attendant to this, it seeks to establish the extent to which the parties have recognised their obligations and complied with the requirements of the Agreement.
1.2 We believe that we have honoured every commitment we made on 10 April 1998. We have acted in a manner wholly consistent with both the letter and the spirit of the Agreement. Moreover, we have recognised the difficulties facing all sides in implementing the Agreement, hence our willingness to consider proposals for 'sequencing.' Unfortunately these reasonable overtures have been rejected and our well-meaning attempts to reach accommodation with republicanism have been spurned. Republicans have refused to even acknowledge their obligation to disarm. Furthermore, recent events have shown the equivocal nature of the Sinn Fein/IRA commitment to "peace and democracy": the murder of Charles Bennett and renewed IRA arms importation have justified our increasingly sceptical attitude towards Sinn Fein.
1.3 Of course these most recent, and flagrant, breaches of the IRA cease-fire have necessarily widened the remit of the Review. It can no longer be purely concerned with gauging the extent to which the Agreement has been implemented, and how the process can be successfully completed. It must be primarily concerned with the Sinn Fein/IRA commitment (or lack of it) to "exclusively democratic and peaceful means of resolving differences".
1.4 While we believe a fundamental objective of the Review must be to consider if Sinn Fein is committed to exclusively peaceful means, we also acknowledge that the Review can help us break the current impasse and see the Agreement implemented in full. To this end, we hope that this Paper will usefully highlight the imbalance of the present implementation process, and will remind the participants of the type of implementation process that was envisaged in April 1998.
1.5 The Paper will therefore consist of two parts. The first concerns those aspects of the Agreement that were to be implemented over time, on the basis of an evolutionary approach. This deals with the constitutional and institutional aspects of the Agreement. The second part of the Paper concerns those aspects which were to be implemented with almost immediate effect: reviews into criminal justice and the police; the establishment of Human Rights and Equality Commissions; security normalisation; prisoner releases; and decommissioning. Unlike the constitutional and institutional aspects of the Agreement, where continued negotiations and complex legislation were required to "flesh out the bare bones" of the Agreement, the "non-evolutionary" aspects could begin - indeed were intended to begin - with immediate effect. For example prisoner releases and decommissioning could legally begin straight away unlike the establishment of the North/South Ministerial Council. Understanding this context is of utmost importance when considering why the provisions of the Agreement have yet to be fully implemented.
1.6 We believe that in spite of the current difficulties there is huge potential for the aims of the Belfast Agreement to be realised. We hope that this Paper will demonstrate our unwavering commitment to the full implementation of the Agreement, and will highlight where the stumbling blocks to implementation are to be found.
2.1 The vision that motivated the parties during negotiations in 1998 - the shared desire for "reconciliation and rapprochement within the framework of democratic and agreed institutions" - was underpinned by and embodied in the Belfast Agreement. The Agreement identified interlocking institutions that needed to be established and pinpointed specific issues that required redress before this laudable vision could be given tangible expression.
2.2 Although the Agreement provided detailed descriptions of what the institutions would resemble, and how they would ultimately operate, there were fewer references to the nature of the implementation process; or how, in legal terms, the new institutions and constitutional changes would be brought into being. Consequently, there has been some confusion as to what means would be adopted to reach the end goal - the establishment of the institutions or, more simply, how to get from A to B.
2.3 However, one thing was clear: the institutions could not be simply set up overnight; the Agreement could not be implemented immediately in relation to the creation of institutions. This common sense reality has been overlooked by those claiming that Ulster Unionists have been filibustering and attempting to renege on our commitments.
2.4 A close inspection of the relevant provisions in the Agreement validates our position. Before the institutions were to be set up, new legislation was to be made and out-dated legislation repealed. The fact that the new institutions would impact on two sovereign, independent states complicated the process further, in that it required Treaties to be drawn up between the respective Governments. Legislation of this importance required ample consultation and sufficient time for parliamentary scrutiny.
2.5 At the outset this was recognised by the parties and an "evolutionary" approach to implementing the constitutional and institutional aspects of the Agreement (in keeping with the terms of the Agreement) was adopted. The Assembly would meet in "shadow" form, would make its own Standing Orders, create its own Departments, consider the functions of North/South implementation bodies and areas for East/West co-operation.
2.6 However, throughout this period (which ended in March 1999 when the Departments, North/South bodies and East/West arrangements were agreed and legislated for) Sinn Fein and other paramilitary-related parties accused the Ulster Unionist Party of erecting barriers to prevent the full implementation of the Agreement. As we have seen, progress on institutions was taking place, as envisaged in the Agreement, on an evolutionary basis. Sinn Fein's continued carping was nothing more than a diversionary tactic, aimed at drawing attention away from their failure to honour their obligations in regard to decommissioning.
2.7 Until March 1999 there was little chance of establishing an Executive: Departments were only agreed in late December, only received the assent of the Assembly in mid-February and were only legislated for in March. Similarly, the North/South Ministerial Council, British-Irish Council and British-Irish Intergovernmental Conference were only established by Treaties in March.
2.8 Since then progress towards setting up an Executive has been frustrated by the paramilitary-related parties equivocation on their commitment to "peaceful and democratic means", and their refusal to even countenance decommissioning. The Agreement expressly states that decommissioning is an obligation and a failure by those in possession of arms to honour this obligation will result in their removal or exclusion from Executive office. Just as the IRA and Sinn Fein are inextricably linked, so too are decommissioning and the formation of an Executive: paragraph 1 of the "Decommissioning" section of the Agreement makes this linkage unambiguously.
2.9 Implementation of the constitutional and institutional aspects of the Agreement was to be undertaken on an "evolutionary" basis. The Agreement makes this clear, and practical exigencies underline the efficacy of this approach. Before institutions can be created and significant constitutional change can take place, consultation, debate and rigorous examination of proposed legislation, which would give effect to the changes, must occur. Inevitably this takes time. From the signing of the Agreement until March 1999 this progressive approach to implementation was the only realistic way to proceed, indeed it was the way envisaged in the Agreement itself. Since March, failure to establish an Executive, or transfer of powers, has centred on the paramilitary-related parties refusal to commit themselves to a new peaceful beginning. Until they are prepared to unequivocally do so, the Agreement cannot be properly implemented.
2. PART I: THE IMPLEMENTATION OF THE "EVOLUTIONARY" ASPECTS OF THE AGREEMENT
2.10 The democratic principle of consent, or a governmental recognition of the "legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status", is the constitutional bedrock which underpins the Belfast Agreement.
2.11 In seeking to give this principle legislative expression, the Governments agreed to "propose and support changes in, respectively, the Constitution of Ireland and in British legislation relating to the constitutional status of Northern Ireland". In other words, the Irish Government would amend Articles 2 and 3 of their Constitution, and the UK would amend (and where necessary repeal) outmoded legislation relating to the constitutional status of Northern Ireland. In both cases the primacy of 'consent' would be enshrined. Furthermore, the principle of consent would be endorsed in a "new British-Irish Agreement replacing the Anglo-Irish Agreement".
2.12 In implementing this aspect of the Agreement, the Governments have adopted an evolutionary approach. Although the new British-Irish Agreement can only come into operation once powers are devolved from Westminster to the Northern Ireland Assembly, other requirements "for [the] entry into force of this Agreement" have been met progressively:
"(a) British legislation shall have been enacted for the purpose of implementing Annex A to the section entitled 'Constitutional Issues' of the Multi-Party Agreement;"
The Northern Ireland Act, which was introduced in Parliament on 15 July 1998 and received Royal Assent on 19 November 1998, implements Annex A in Part I, Articles 1 and 2.
"(b) the amendments to the Constitution of Ireland set out in Annex B to the section entitled 'Constitutional Issues' of the Multi-Party Agreement shall have been approved by referendum;"
The 22 May referendum, both on the Belfast Agreement and proposed changes to the Irish Constitution, was supported by about 95% of those who voted in the Republic. However, for the constitutional changes to take effect a "declaration" was to be made within "twelve months of this section being added to the Constitution or such longer period as may be provided by law". As the declaration was unable to be made within twelve months, on 26 May 1999 the Oireachtas approved legislation to extend the timescale for a further year.
"(c) such legislation shall have been enacted as may be required to establish the institutions referred to in Article 2 of this Agreement".
On 18 December 1998, agreement was reached on the make-up and functions of the North/South implementation bodies. This was approved by the Northern Ireland Assembly on 15 February 1999. Consequently a North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 was passed by Parliament on 8 March 1999. On the same day, the Governments, under the terms of section 2 of the British-Irish Agreement, signed Treaties to establish the British-Irish Council, the British-Irish Intergovernmental Conference, the North/South Ministerial Council and associated implementation bodies. Again, these Treaties would come into force once powers were devolved from Westminster and the British-Irish Agreement came into effect.
2.13 An evolutionary approach, then, was to be adopted in implementing the constitutional aspects of the Agreement. Before the British-Irish Agreement (and the creation of the institutions) could come into being, a number of foundations needed to be laid: a referendum in the Republic was required; Parliamentary approval of constitutional amendments was necessary; and Treaties between the Governments had to be signed. By following an evolutionary approach to making constitutional changes, the Governments both proceeded along the lines envisaged in the Agreement, and have ensured that the new constitutional arrangements will have a firm legal grounding.
2. PART I: THE IMPLEMENTATION OF THE "EVOLUTIONARY" ASPECTS OF THE AGREEMENT
(i) The Northern Ireland Assembly
2.14 In common with the other institutions proposed in the Belfast Agreement, the Northern Ireland Assembly could not operate with full executive and legislative powers immediately. The "Validation, Implementation and Review" section of the Agreement makes this clear:
"If majorities of those voting in each of the referendums support this agreement, the Governments will then introduce and support, in their respective Parliaments, such legislation as may be necessary to give effect to all aspects of this agreement, and will take whatever ancillary steps as may be required including the holding of elections on 25 June, subject to parliamentary approval, to the Assembly, which would initially meet in 'shadow' mode".
Following the endorsement of the Belfast Agreement in the 22 May referendum, and the elections to the Assembly on 25 June 1998, the Assembly met in 'shadow' mode - as envisaged in the Agreement - on 1 July 1998.
2.15 The remit of the 'shadow' Assembly was also outlined under the heading "Transitional Arrangements", Strand One, paragraph 35:
"The Assembly will meet first for the purposes of organisation, without legislative or executive powers, to resolve its standing orders and working practices and make preparation for the effective functioning of the Assembly, the British-Irish Council and the North-South Ministerial Council and associated implementation bodies".
In accordance with this, the Assembly elected David Trimble and Seamus Mallon, to serve as First and Deputy First Ministers (Designate) respectively, on 1 July 1998. The Assembly also appointed a Committee on Standing Orders, which presented Reports to the Assembly on 14 and 26 September 1998. An Ad Hoc Committee on the Procedural Consequences of Devolution produced a Final Report on 9 November 1998, which was then forwarded to the House of Commons Procedures Committee. Lastly, a Shadow Commission was established to assist in making preparations for the effective functioning of the Assembly.
The Assembly also made preparations for the "effective functioning" of the other institutions as outlined in the Agreement. Parties made submissions to the First and Deputy First Ministers on the make-up of the Northern Ireland Departments, and suggested areas for North/South and East/West co-operation. On 15 February 1999 the Assembly approved both the Departments and North/South implementation bodies as agreed by the parties on 18 December 1998.
2.16 The Agreement also provided for:
"Executive authority to be discharged on behalf of the Assembly by a First Minister and a Deputy First Minister and up to 10 Ministers with Departmental responsibilities".
On 18 December 1998 the parties agreed the following 10 Departments: Agriculture and Rural Development; Regional Development; Environment; Education; Social Development; Higher and Further Education and Employment; Enterprise, Trade and Investment; Culture, Arts and Leisure; Health, Social Services and Public Safety; and Finance and Personnel. This agreement was approved by the Assembly on 15 February 1999. In March 1999 Parliament passed the relevant Departmental Order which gave legislative effect to the agreed Northern Ireland Departments.
Understanding this chronology is vital. Sinn Fein has persistently made the bogus allegation that the Ulster Unionist Party has done its utmost to frustrate the setting up of the Executive and Departments. They claim that the Executive should have been established as soon as the First and Deputy First Ministers were appointed. However, agreement was only reached on the structure of the Departments in December 1998. The Assembly only agreed the Departments in February 1999. Parliamentary approval was only secured in March 1999. It was legally (not to mention physically) impossible to create an Executive before March - when the Departments were agreed, and legally provided for. For Sinn Fein to retrospectively claim otherwise is nothing more than a ruse, designed to divert attention from their failure to begin decommissioning. Indeed, since March the only obstacle to implementing the Agreement with regard to the Executive has been Sinn Fein's failure to decommission.
(ii) The North/South Ministerial Council and British-Irish Council
2.17 Just as the Agreement envisaged a Northern Ireland Assembly operating in a transitional or 'shadow' phase where it would identify its modus operandi, so it similarly envisaged the other institutions operating in the same initial vein. It was hoped that this would most effectively pave the way for a smooth transition when powers were ultimately devolved. In a manner akin to the implementation of the constitutional aspects of the Agreement, the institutional changes would be characterised by the same evolutionary approach: powers would not be transferred straight away, institutions would not be set up overnight, but mechanisms would be put in place to smooth the way for this eventual outcome. Paragraphs 7 and 8 of Strand Two of the Agreement underline this:
"7. As soon as practically possible after elections to the Northern Ireland Assembly inaugural meetings will take place of the Assembly, the British-Irish Council and the North/South Ministerial Council in their transitional forms. All three institutions will meet regularly and frequently on this basis during the period between the elections to the Assembly, and the transfer of powers to the Assembly, in order to establish their modus operandi.
"8. During the transitional period between the elections to the Northern Ireland Assembly and the transfer of power to it, representatives of the Northern Ireland transitional Administration and the Irish Government operating in the North/South Ministerial Council will undertake a work programme, in consultation with the British Government, covering at least 12 subject areas, with a view to identifying and agreeing by 31 October 1998 areas where co-operation and implementation for mutual benefit will take place".
2.18 These provisions demonstrate how the evolutionary approach to the implementation of the institutional aspects of the Agreement was to be adopted. The parties would progress to a point where the mechanics for operating each of the institutions would be agreed, and their functions settled. Meanwhile, legislation and other statutory measures required to create the institutions in law would be framed and passed in each of the relevant jurisdictions. In this way, and over time, the bare bones of the Agreement would be fleshed out, and the provisions implemented.
2.19 In September 1998 the Ulster Unionist Party proposed that the First and Deputy First Ministers, representing the Northern Ireland Assembly, should meet the relevant Irish Ministers in a 'shadow' North/South Ministerial Council sitting. Not only would this have met the requirements of paragraph 7 of Strand Two of the Agreement (quoted above), but it would have been consistent with the provisions of paragraph 3 of the same section of the Agreement which state that the Council should meet "in plenary format twice a year, with Northern Ireland representation led by the First Minister and Deputy First Minister and the Irish Government led by the Taoiseach". For the inaugural meeting of the "transitional" North/South Ministerial Council to have been conducted on this basis would have been entirely in line with the provisions of paragraphs 3, 7 and 8 of Strand Two. Unfortunately, our proposal was rebuffed by the SDLP and Irish Government. We feel it is regrettable that the North/South Ministerial Council has been unable to meet in 'shadow' form, particularly as such an eventuality is clearly provided for in the Agreement. Moreover, the ultimately fruitless discussions on this issue held up progress in establishing the Ministerial Council and implementation bodies, and made the 31 October target date unrealisable.
2.20 In spite of this, the other requirements, mainly those contained in paragraph 8 of Strand Two, have been implemented. Much has been made of the fact that the target date (not a deadline) of 31 October 1998 was not met. This was a consequence both of the prolonged discussions on the creation of a 'shadow' North/South Ministerial Council (see above), and the concomitant difficulties in dealing with the complexities of setting up such an institution. Other events, such as the North American Investment Tour, Assembly visit to Brussels and Nobel Prize reception, also made it difficult to reach agreement on the Council by the target date. This notwithstanding the Ulster Unionist Party worked vigorously to implement this part of the Agreement, and on 18 December 1998 the 12 subject areas for North/South co-operation were agreed, and approved by the Assembly on 15 February 1999. The subject areas agreed were: inland waterways; food safety; trade and business development; special EU programmes; language; aquaculture and marine matters; transport; agriculture; education; health; environment; and tourism. Moreover, six implementation bodies were also approved: Waterways Ireland; the Food Safety Promotion Board; the Trade and Business Development Body; the Special EU Programmes Body; the North/South Language Body; the Foyle, Carlingford and Irish Lights Commission.
2.21 In line with paragraph 10 of Strand Two which stated that "the two Governments will make necessary legislative and other enabling provisions to ensure... that these bodies... function at the time of the inception of the British-Irish Agreement...", the Governments agreed Treaties on 8 March 1999 to establish the North/South Ministerial Council and implementation bodies. At the same time Parliament approved the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999, thus ensuring that these institutions would be fully operational as soon as powers are transferred.
2.22 The Agreement also provides for a British-Irish Council "to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands". A British-Irish Intergovernmental Conference would also be established "which will subsume both the Anglo-Irish Council and Intergovernmental Conference".
2.23 The approach to the establishment of the British-Irish Council, like that adopted in the implementation of the North/South aspects of the Agreement, has been progressive and evolutionary. Both Governments and the parties have been active in laying the groundwork for the Council and ensuring that it will come into operation as soon as powers are transferred.
2.24 In September 1998, the parties were invited to make submissions to the First and Deputy First Ministers, identifying areas for co-operation and development. On 16 December 1998 meetings took place between the Secretaries of State for Scotland, Wales and Northern Ireland, and the Minister for the Regions. Discussions revolved around preparations for the inaugural meeting of the Council. Representatives from the Isle of Man and Channel Islands were also encouraged to participate.
2.25 Following ongoing discussions between the British and Irish Governments, on 8 March 1999 the Governments signed Treaties "under and in furtherance to Article 2 of the British-Irish Agreement" to establish the British-Irish Council and British-Irish Intergovernmental Conference.
2.26 The implementation of the Agreement with regard to the constitutional and institutional aspects has been consistent and evolutionary in approach. It is clear that this was the approach envisaged in the Agreement. Overnight implementation - as demanded by some - could not occur for two reasons. First, the Assembly had to meet in 'shadow' form to establish a clear modus operandi and to determine its relationship with Westminster and the newly-created institutions. Second, the Governments required time to give legislative expression to these important changes. The formulation of legislation taking account of such significant constitutional change, the scrutiny of the proposed legislation and inter-Governmental discussions regarding new Treaties meant that implementation would necessarily be evolutionary, not immediate, in approach.
2.27 Those frustrated by the apparent lack of progress on this front should consider the examples of Scotland and Wales. There, the new institutions were not created on the whim of Governments: time was taken to get the enabling legislation right, and working practices in order. In fact, the entire process took virtually two years. In Scotland the devolution referendum took place on 11 September 1997 and powers were transferred on 1 July 1999; in Wales, the referendum was held on 18 September 1997 and powers transferred on 1 July 1999. Suggestions that the Ulster Unionist Party are attempting to frustrate the creation of the institutions are misplaced, indeed it was the UUP who proposed that the North/South Ministerial Council should meet, albeit in 'shadow' form. There has been no feet-dragging on our part to get where we are now. We have moved as quickly as the constraints of time have permitted and we remain equally determined to see the remainder of the Agreement implemented in full.
2. PART I: THE IMPLEMENTATION OF THE "EVOLUTIONARY" ASPECTS OF THE AGREEMENT
2.28 As we have seen, implementing the constitutional and institutional aspects of the Agreement could only happen in the context of a developing process, given that implementation was dependent on 'outside' factors, such as Westminster legislation or the Irish referendum. March 1999 was the earliest date that powers could have been transferred from Westminster and the British-Irish Agreement entered into force. However, the continued refusal of the paramilitary-related parties to countenance decommissioning, while simultaneously demanding places on an Executive, has brought the entire process to the verge of collapse.
2.29 Sinn Fein/IRA and their loyalist counterparts have argued that there is no explicit connection between decommissioning and the setting up of the Executive, there are no "preconditions" to their entitlement to Ministerial posts. However, the Agreement makes it clear that there are conditions to be met before any individual becomes a Minister:
"23. As a condition of appointment Ministers, including the First Minister and Deputy First Minister, will affirm the terms of the Pledge of Office..."
"35. In this transitional period, those members of the Assembly serving as shadow Ministers shall affirm their commitment to non-violence and exclusively peaceful and democratic means and their opposition to the use or threat of force for any political purpose; to work in good faith to being the new arrangements into being; and to observe the spirit of the Pledge of Office applying to appointed Ministers".
The Pledge of Office "to pledge: (b) commitment to non-violence and exclusively peaceful and democratic means".
By refusing to begin to decommission, Sinn Fein/IRA's commitment to "non-violence and exclusively peaceful and democratic means" is worthless. Moreover, as long as they have access to guns - whether they be "silent" or not - they clearly threaten force in pursuit of a narrow political agenda. Lastly, their determination to hold onto a massive stockpile of weapons demonstrates their total failure to "observe the spirit of the Pledge of Office".
2.30 On 14 May 1998 the Prime Minister further defined what would constitute a breach of the "spirit of the Pledge of Office", as he outlined the British Government's criteria for judging the parties commitment to peace and democracy:
"First and foremost a clear and unequivocal commitment that there is an end to violence for good, on the part of republicans and loyalists alike, and that the so-called war is finished, done with, gone; that, as the Agreement says, non-violence and exclusively peaceful and democratic means are the only means to be used; that, again as the Agreement expressly states, the ceasefires are indeed complete and unequivocal, an end to bombings, killings and beatings, claimed or unclaimed; an end to targeting and procurement of weapons; progressive abandonment and dismantling of paramilitary structures actively directing and promoting violence; full co-operation with the Independent Commission on Decommissioning to implement the provisions of the Agreement; no other organisations being deliberately used as proxies for violence".
2.31 The Prime Minister's speech at Balmoral definitively set out the criteria by which a commitment to peace and democracy would be measured. Indeed, the same principles were incorporated into both the Northern Ireland Act 1998 and the Northern Ireland (Sentences) Act 1998, giving added weight and statutory force to the Prime Minister's words. However, since 10 April 1998 the paramilitary-related parties have fallen short of this democratic benchmark. Although the PUP/UVF and UDP/UFF have been equally culpable, attention has to be focused on Sinn Fein/IRA as they are the only paramilitary-related party with Executive pretensions.
Sinn Fein Breaches of the Balmoral Criteria
Since 10 April 1998 five men, Andrew Kearney, Eamon Collins, Brendan Fegan, Paul Downey and Charles Bennett, have been murdered, either "claimed or unclaimed" by Sinn Fein/IRA which, the British Government have recently confirmed remain "inextricably linked".
In 1999 alone, 211 shootings and 74 beatings have been carried out by terrorists - approximately half of those attributable to the IRA.
Sinn Fein/IRA have been engaged in arms importation. Arms procurement has been ongoing in the US and smuggled into the Irish Republic. Moreover, in June 1999 two republicans apprehended crossing the border with explosives joined the IRA wing of the prison where they were incarcerated.
On 18 April 1998 Gerry Adams made clear the nature of Sinn Fein's "unambiguous support" for the Agreement: "Sinn Fein will subscribe to what we view as positive in the Agreement, to those aspects which contribute to moving us towards our overall objectives... Some of our critics say, 'You can't do that. You have to buy it all or nothing.' But they are wrong."
2.32 The words and actions of the Republican Movement are clearly in conflict with the Agreement, which is predicated on all parties affirming "our total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues, and our opposition to any use or threat of force by others for any political purpose". Consequently, republican failure to unequivocally reassure democrats of their peaceful intent is enough to disqualify them from seats on the Executive. Moreover, the Agreement also specifically links decommissioning with sitting on an Executive, irrespective of republicanism's denial syndrome:
"25. An individual may be removed from office following a decision of the Assembly on a cross-community basis if (s)he loses the confidence of the Assembly, voting on a cross-community basis, for failure to meet his or her responsibilities including, inter alia, those set out in the Pledge of Office. Those who hold office should use only democratic, non-violent means, and those who do not should be excluded or removed from office".
"1. Participants recall their agreement in the Procedural Motion adopted on 24 September 1997 'that the resolution of the decommissioning issue is an indispensable part of the process of negotiation', and also recall the provisions of paragraph 25 of Strand 1 above".
2.33 The Agreement specifically links decommissioning to "the exclusion or removal" from Executive office. The use of the terms "excluded or removed" is meaningful. "Removal" from office can only be applied after the defaulting Member or party has been appointed. However "exclusion" from office can only be applied before an appointment is taken up. In other words, the Agreement requires parties and individuals to be committed to exclusively peaceful means, and decommissioning, before holding office. The Agreement is clear: a failure either to decommission weapons (for those groups who maintain an armed wing) or to uphold the provisions of the Pledge of Office will result in the defaulting party being deemed unworthy of office and being excluded. The connection between decommissioning and sitting on the Executive has been affirmed by both the British and Irish Governments over the past 15 months:
The Prime Minister, 22 April 1998: "We said we want the total disarmament of all paramilitary organisations. Meanwhile it would be a travesty of democracy if parties associated with paramilitary organisations held office in the Assembly while they continue to be engaged in or threaten terrorism".
The Prime Minister, 22 May 1998: "Representatives of parties linked to paramilitary groups can only be in a future Northern Ireland Government if it is clear that there is to be no more violence and the threat of violence is gone. That doesn't just mean decommissioning, but all the bombing, killing, beatings and an end to targeting, recruiting and all the structures of terrorism".
The Secretary of State, 10 June 1998: "To build trust between the groups we must move in parallel in the different elements - prisoners, decommissioning, the North/South Ministerial Council and the new Northern Ireland Assembly - if we are to make progress".
The Taoiseach, 25 November 1998: "Everyone needs to understand that an armed peace is not what anyone of us signed up to".
The Taoiseach, 14 February 1999: "Our view is that decommissioning in one form or other has to happen. I am on record in recent weeks and months as saying that it is not compatible with being part of government - I mean part of an Executive - that there is not at least a commencement of decommissioning".
2. PART I: THE IMPLEMENTATION OF THE "EVOLUTIONARY" ASPECTS OF THE AGREEMENT
2.34 Any comprehensive reading of the Agreement makes it clear that decommissioning and the formation of an Executive are necessarily inter-related. Prospective Ministers must affirm their opposition "to the use or threat of force" before taking up office. By its refusal to decommission the IRA are reserving the right to go back to violence when it deems it necessary. As long as decommissioning is not taking place, then, the "threat of force" obviously remains. Moreover, the Agreement states that prospective Ministers must "observe the spirit of the Pledge of Office". Retention of weapons hardly sits naturally alongside this admirable pledge. The Agreement goes further still in reinforcing this linkage. The "Decommissioning" section specifically "recalls paragraph 25 of Strand 1" - in other words, the failure of paramilitaries to complete or begin decommissioning will result in their political sidekicks being removed or excluded from office.
2.35 Sinn Fein has also fallen short of the democratic benchmark espoused by the Government last May. At Balmoral the Prime Minister articulated his definition of the "spirit of the Pledge of Office". He stated there should be an "end to killings and beatings, claimed or unclaimed", yet these have continued unabated. There should be an "end to targeting and the procurement of weapons". Again, no end appears in sight. There should be a "progressive dismantling of paramilitary structures". Nothing of the sort has occurred. In this context to reward Sinn Fein with Executive positions in current circumstances would dishonour the Agreement and compromise the democratic process.
2.36 It has been almost universally acknowledged that, by their refusal to meet their obligations to decommission and their selective interpretation as to how 'democracy' is defined, Sinn Fein/IRA is in breach of the 'spirit of the Agreement'. While this is undeniably true, Sinn Fein have been equally culpable in breaching the 'letter of the Agreement'.
2.37 The Northern Ireland Act 1998 states that devolution and an Executive can only happen once "sufficient progress has been made in implementing the Belfast Agreement". Unfortunately there has been no progress made in relation to decommissioning, nor has there been an unambiguous Sinn Fein/IRA commitment - matched by actions as well as words - to peace and democracy. Only when this has been rectified can the people of Northern Ireland have confidence in the democratic process and good government can flourish.
2. PART II: THE IMPLEMENTATION OF THE "NON-EVOLUTIONARY" ASPECTS OF THE AGREEMENT
3.1 It was never envisaged that the constitutional and institutional aspects of the Agreement would be implemented immediately. Any process which involved the establishment of new statutory arrangements would take time, and an evolutionary approach to implementation was the only practical way to proceed.
3.2 However, other aspects of the Agreement could be implemented with quasi-immediate effect. There were few legal impediments in implementing the provisions relating to rights, safeguards and equality of opportunity, and the reviews of policing and criminal justice. It was intended that the reviews should begin as soon as possible and report back by the dates stipulated in the Agreement. Similarly, the process of creating the Human Rights and Equality Commissions was to begin straight away, and the appointment of Commissioners to take place as soon as was practically possible.
3.3 The Agreement contained five broad provisions in relation to rights, all of which were to have been implemented as soon as was practicable.
(i) Equality of Opportunity Legislation
3.4 The Agreement committed the British Government to
"create a statutory obligation on public authorities in Northern Ireland to carry out 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. Public bodies would be required to draw up statutory schemes showing how they will implement this obligation".
3.5 Section 61 of the Northern Ireland Act 1998 imposes a duty on public authorities in Northern Ireland "to have due regard to the need to promote the equality of opportunity -
The Bill was introduced to Parliament on 15 July 1998, and became legally operative on 19 November 1998.
(ii) Northern Ireland Human Rights Commission
3.6 The Agreement made specific reference to the creation of this Commission:
"4. The new Northern Ireland Human Rights Commission will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances in Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with the ECHR - to constitute a Bill of Rights for Northern Ireland.
"5. A new Human Rights Commission, with membership from Northern Ireland reflecting the community balance, will be established by Westminster legislation, independent of Government, with an extended and enhanced role beyond that currently exercised by the Standing Advisory Committee on Human Rights".
3.7 The Northern Ireland Act 1998 established the Human Rights Commission. In January 1999 interviews were held for the post of Chief Commissioner, and Brice Dickson was appointed Chief Commissioner Designate. On 1 March 1999 the Government appointed Brice Dickson Chief Commissioner and the other nine part-time posts on the Human Rights Commission were filled.
3.8 Although the implementation of these provisions of the Agreement occurred rapidly - the Bill became law in November and the Commission was appointed by 1 March - the Government erred and went outside the terms of the Agreement in the appointment of the Commission. The Agreement expressly states that the Commission must "reflect the community balance". However, of the ten Commissioners, four have previously served on the CAJ, a body regarded by unionists as being, at best, unsympathetic and, at worst, downright hostile towards their community. Moreover, the new Commission does not include anyone who could be fairly classed as being representative of the unionist community. This breach of the Agreement must be rectified if the Commission is to win the trust and support of both traditions.
(iii) Northern Ireland Equality Commission
3.9 The Agreement also provided for an Equality Commission:
"6. Subject to the outcome of public consultation currently underway, the British Government intends a new statutory Equality Commission to replace the Fair Employment Commission, the Equal Opportunities Commission (Northern Ireland), the Commission for Racial Equality (Northern Ireland) and the Disability Council. Such a unified Commission will advise on, validate and monitor the statutory obligations and will investigate complaints of default".
3.10 The Equality Commission, like the Human Rights Commission, was established by the Northern Ireland Act 1998, which became law in November 1998. A working group which comprised of the Chairs and Chief Executives of the four existing equality bodies was set up to consider and recommend proposals on the shape and structure of a new unified Commission. The Group reported back in January 1999. On 4 February the process of finding Commissioners began. On 22 July 1999 the Equality Commission was appointed. It contains 20 members and is chaired by Joan Harbison. It will subsume the Fair Employment Commission, the Equal Opportunities Commission, Commission for Racial Equality and Disability Council on 1 October 1999.
3.11 In common with other aspects of the Agreement which were to be implemented on a non-evolutionary basis, progress in establishing the Commission has been rapid. Within weeks of the Agreement being signed the task of identifying potential Commissioners began and a working group was set up. Similarly the Commission was provided for in law by November 1998. In this way, the Government has honoured its commitments.
(iv) Comparable Steps by the Irish Government
3.12 The Agreement also specified commitments in the field of human rights to be undertaken by the Irish Government:
"... The Irish Government will:
3.13 The Bill to establish a Human Rights Commission has been drafted and, as of 26 May 1999, is expected "very soon". The Minister for Justice, Equality and Law Reform has set September 1999 as a target date for the implementation of the provisions of the Employment Equality Act 1998. The Act prohibits discrimination in relation to employment on gender, marital status, sexual orientation, religious belief, disability, age, race or membership of a traveller community grounds.
3.14 The equality infrastructure established under the Employment Equality Act consists of two bodies: the Equality Authority and the Office of the Director of Equality Investigation. The Equality Authority was appointed on a Designate basis in March 1999.
3.15 In February 1999 the Government approved proposals for the ratification of the Council of Europe Framework Convention on National Minorities. This has now been formally ratified.
3.16 The British Government made further commitments with regard to the Irish and Ulster-Scots languages:
"... the British Government will in particular relation to the Irish language, where appropriate or where people desire it:
3.17 In response, the British Government agreed to sign the Council of Europe Charter for Regional or Minority Languages in June 1998, and to specify Irish for the purposes of part III of the Charter at an "early date".
3.18 In July 1998 the Education (Northern Ireland) Order was approved, placing a statutory duty on the Department of Education to encourage and facilitate Irish in medium education.
3.19 A new branch of the Northern Ireland Civil Service has been established to develop policy on linguistic diversity, including the Irish language.
3.20 The British Government has acted in a speedy manner to implement parts of the Agreement relating to the Irish language. More disappointingly, however, little has been done to encourage or develop the use of the Ulster-Scots language. Apart from spending ?108,000 on a study into the language, the urgency which characterised the Government's approach to the Irish language has been lacking in relation to Ulster-Scots.
(c) Policing and Justice
3.21 The Agreement committed the British Government to set up a Policing Commission:
"3. An independent Commission will be established to make recommendations for future policing arrangements in Northern Ireland... The Commission will be broadly representative with expert and international representation among its membership and will be asked to consult widely and report no later than Summer 1999".
3.22 Again, in common with the provisions on rights and equality, it was envisaged that the Policing Commission would begin working straight away. Consequently, the membership of the Independent Commission on Policing was announced on 3 June 1998, with Chris Patten in the Chair.
3.23 Although the Ulster Unionist Part rejects many of the Patten proposals, this need not concern us here. This Paper concentrates on the implementation of the Agreement, where the obstacles to implementation have been found, and seeks to highlight the imbalance of the present implementation process. In this context it is clear that the Government moved swiftly in implementing the Agreement through the creation of the Patten Commission in early June 1998. The Agreement states that "implementation of the recommendations arising from both reviews will be discussed with the political parties and with the Irish Government". In other words, the Government has, up until now, done everything that is required of them in the Agreement.
3.24 In the same vein and in keeping with the relevant provisions of the Agreement, the Government agreed that
"There will be a parallel wide-ranging review of Criminal Justice (other than policing and those aspects of the system relating to emergency legislation)... The review will commence as soon as possible, will include wide consultation and a report will be made to the Secretary of State no later than Autumn 1999".
3.25 On 27 June 1998 the Secretary of State announced a review of the Criminal Justice system. A consultation paper was then launched on 27 August 1998 which invited the parties and other interested observers to express their views.
3.26 By moving at such speed and adopting a non-evolutionary approach to matters that could be implemented immediately, the Secretary of State was acting in a manner consistent with the terms of the Agreement.
2. PART II: THE IMPLEMENTATION OF THE "NON-EVOLUTIONARY" ASPECTS OF THE AGREEMENT
4.1 The Agreement also envisaged a non-evolutionary implementation approach to the decommissioning, prisoner release and security aspects of the Agreement. Each of them was to start immediately, and be completed either within a two-year timescale, in the case of decommissioning and prisoner releases, or as soon as the security situation permitted, in the case of security normalisation.
4.2 Neither decommissioning nor prisoner releases had a specifically defined start-date. However, the Governments clearly had June 1998 in mind. Paragraph 6 of the Decommissioning section of the Agreement states that "both Governments will take all necessary steps to facilitate the decommissioning process to include bringing the relevant schemes into force by the end of June". Paragraph 4 of the Prisoners section of the Agreement states that "the Governments will seek to enact the appropriate legislation to give effect to these arrangements by the end of June". Furthermore, the Prime Minister confirmed that this was indeed his view in a letter to David Trimble on 10 April 1998: "in our view the effect of the decommissioning section of the Agreement, with decommissioning schemes coming into effect, is that decommissioning should start straight away". In other words, not only should decommissioning begin immediately, but as far as the British Government was concerned, careful reading of the Decommissioning section of the Agreement supported this position.
4.3 By releasing prisoners as early as September 1998, and by beginning the process of security normalisation around the same time, the Governments clearly expected some reciprocation with regard to decommissioning. The failure of the paramilitary-related parties to deliver on this issue - the outstanding aspect of the Agreement that requires implementation - has brought the overall implementation process to a standstill.
4.4 On 26 January 1996, the Report of the International Body on Arms Decommissioning was published. The Report contained proposals for the resolution of the thorny 'decommissioning problem'. These proposals were accepted by the Governments and major parties, who regarded them as offering both a realistic assessment of the then situation and, more importantly, a potential way to unscramble the decommissioning conundrum. In essence, the Report suggested that decommissioning should begin as inclusive, all-party talks got under way:
"34. The parties should consider an approach under which some decommissioning would take place during the process of all-party negotiations, rather than before or after as the parties now urge. Such an approach represents a compromise".
4.5 Society was offered two reassurances. Firstly, all the parties - including Sinn Fein on behalf of the entire Republican Movement - would accept what became known as the Mitchell Principles, promising a commitment:
"20. To democratic and exclusively peaceful means of resolving political issues; To the total disarmament of all paramilitary organisations; To agree that such disarmament must be verifiable to the satisfaction of an independent commission; To renounce for themselves, and to oppose any efforts by others, to use force or threaten to use force, to influence the course or outcome of all-party negotiations; To agree by the terms of any agreement reached in all-party negotiations and to resort to democratic and exclusively peaceful methods in trying to alter any aspect of that outcome with which they disagree; and To urge that 'punishment' killings and beatings stop and to take effective steps to prevent such actions".
The Government offered further reassurances, stating that "any party which demonstrably dishonours its commitment to those [Mitchell] Principles ceases to be eligible to participate in the all-party negotiations..."
4.6 Secondly, society was assured in paragraph 25 that:
"there is a clear commitment on the part of those in possession of such arms to work constructively to achieve full and verifiable decommissioning as part of the process of all-party negotiations".
The only party that could make a "clear commitment on the part of those in possession of arms" was Sinn Fein. In short, Sinn Fein convinced the International Body that, if it was permitted to enter all-party negotiations, it could "achieve full and verifiable decommissioning". Armed with this "clear commitment", the International Body was satisfied that Sinn Fein could do what it promised: deliver IRA guns and achieve full decommissioning in the context of all-party negotiations.
4.7 These undertakings notwithstanding, the Republican Movement's response to the Mitchell Report was to bomb the London Docklands on 9 February 1996, only two weeks after its publication.
(ii) The Agreement
4.8 Despite dishonouring the Mitchell Report by its refusal to begin decommissioning, Sinn Fein/IRA was permitted to enter all-party negotiations in September 1997. Apart from a three week 'suspension' period in February 1998 when Sinn Fein/IRA "demonstrably dishonoured" the Mitchell Principles - a number of suspected drug-dealers and a prominent loyalist were murdered - Sinn Fein/IRA remained in negotiations until the Agreement was framed. But the Agreement offered no respite for the Republican Movement in that it drew on many of the points made in the Mitchell Report, not least in making the decommissioning of terrorist weapons an obligation. In spite of the clarity of this obligation only one token act of decommissioning has taken place - that by the LVF on 18 December 1998.
4.9 Paragraph 3 of the Decommissioning section of the Agreement could not be clearer:
"All parties accordingly reaffirm their commitment to the total disarmament of all paramilitary organisations. They also confirm their intention to continue to work constructively and in good faith with the Independent Commission, and to use any influence they may have, to achieve the decommissioning of all paramilitary arms within two years following an endorsement in referendums North and South of the agreement and in the context of the implementation of the overall settlement".
It is worth breaking paragraph 3 down to better understand the extent of the paramilitary-related parties recalcitrance on this issue.
4.10 All Parties Reaffirm their Commitment to the Total Disarmament of All Paramilitary Organisations
There can be no ambiguity in relation to this part of the Agreement. The parties - including Sinn Fein/IRA - are committed to the total disarmament of all paramilitary organisations. There are no half-measures here. The Agreement builds on the Mitchell Report in making decommissioning a clear obligation. Sinn Fein/IRA profess to support the Agreement and claim they clamour to see it implemented. Yet they have singularly failed to honour this pledge, and their "commitment" to "total disarmament" is blatantly false:
On 16 November 1997 senior Sinn Fein negotiator, Francis Molloy, stated that "this phase of negotiations may fall apart, it may not succeed. And whenever that does happen then we simply go back to what we know best... There's no-one asking anyone to take on the role of [IRA] Volunteers. Those who want, there's certainly a role for them to play as a Volunteer".
In April 1997 Mitchel McLaughlin confirmed that "Sinn Fein will enter the peace talks and finish the political task of the IRA's dead".
In April 1998 Gerry Adams noted: "Some may think this is a provocative statement [but] when I pay tribute to the IRA soldiers, I pay tribute not just to their role when they make war, but to their role when they provide the opportunity of making peace".
More recently, in April 1999, Francis Molloy threatened that "if the SDLP, Dublin Government and the Unionists think they can go about this without us, then we will make the six-county statelet ungovernable".
In July 1999 an IRA arms importation plot was uncovered by the FBI in Florida. Weapons were to be sent to the Irish Republic to "top up" the already vast stockpile of IRA armaments. This completely contradicts any Sinn Fein/IRA commitment to the total disarmament of all paramilitary organisations.
4.11 They Also Confirm Their Intention to Work Constructively and in Good Faith with the Independent Commission
Aside of the Sinn Fein appointment of Martin McGuinness to liaise with the Independent Commission on 2 September 1998, no progress has been made with regard to actual decommissioning starting (Mr. McGuinness states that he does not represent the IRA when meeting with this body). Furthermore in the 2 July 1999 Report, the Commissioners stated that they received "no response to questions (3)(a) and (3)(b) from either the IRA or the UDA by the 28 June deadline". Their failure to respond to question (3)(a) is instructive. It asked: "is the paramilitary group willing to give the Commission a firm basis for expecting that decommissioning will take place within the time scale set forth in the Good Friday Agreement?"
The Report of the Commission also admitted that:
" [in] public statements?. The IRA said it would not decommission its arms, and loyalist groups said they would not do so until they were clear about the IRA's intentions? The Commission urged that paramilitary groups implement confidence-building measures which would demonstrate a willingness to engage positively with the political process and to allow that process to move forward. No proposal to start actual decommissioning has been accepted by any paramilitary group except the LVF."
Just as the IRA refused to answer questions on whether decommissioning would take place as envisaged in the Agreement, so they have refused to "demonstrate a willingness to engage positively with the political process".
4.12 "To Use Any Influence They May Have to Achieve the Decommissioning of All Paramilitary Arms Within Two Years".
Like the Mitchell Report of 1996, the Agreement requires that decommissioning be "achieved". It is not open for re-negotiation. It has to physically happen. Sinn Fein/IRA has succeeded in narrowing this part of the Agreement to the words "use any influence". They have also sought to give the notion of decommissioning ethereal overtones, as if it is unrealistic to expect it to happen. But the Agreement stipulates that decommissioning must happen, it must be "achieved", and until this acknowledged by the paramilitary-related parties and the implementation process is begun, then the current impasse will remain.
Almost a year and a half of the two-year timescale set forth have passed and there is still no indication that decommissioning will commence. Two possible conclusions flow from this: either Sinn Fein has not used its influence or it has no influence on the IRA.
Faced with these conclusions, the Sinn Fein leaders claim they have used all the leverage they possess but, as yet, have been unable to persuade the IRA leadership to decommission. Such implausible platitudes must sound feeble even to those who rehearse them. No serious commentator on Irish affairs doubts that Sinn Fein and the IRA are inextricably linked. This has also been the position of the Governments and other parties:
The Prime Minister, 3 June 1998: "I have always made it clear that we regard Sinn Fein and the IRA as inextricably linked".
Ex-Taoiseach John Bruton, April 1997: "A vote for Sinn Fein is a vote for the IRA and a vote for the IRA's campaign of killing and murder".
John Hume, 2 January 1997: "I have always assumed that Sinn Fein is the political wing of the Republican Movement, the IRA is the military wing of the movement. As far as I am concerned, if you are a member of Sinn Fein, or a member of the IRA, in both you support the strategy and tactics of the whole movement... my whole approach to the strategy is that Sinn Fein are the political wing of the movement which has a military voice called the IRA, and they speak with the same voice when it comes to our situation".
Mary Harney, Tanaiste, 4 January 1999: "There is no distinction between the IRA's political wing, Sinn Fein, and the IRA. And now is the time for them to decommission... I do not accept the distinction between the two organisations".
4.13 The above statements reaffirm the linkage between Sinn Fein and the IRA that was made by the International Body on Arms Decommissioning in 1995. We have already seen how Sinn Fein managed to convince this Body that they could "achieve" full decommissioning in the context of all-party negotiations. The International Body received a "clear commitment on the part of those in possession of arms" that this was the case. Who else but Sinn Fein could have given such a commitment in 1995? In other words, Sinn Fein themselves reinforced this inextricable linkage. For them now to claim that the linkage does not exist is utterly fraudulent.
4.14 Based on the commitment given by Sinn Fein in 1995 (that they could deliver IRA weapons), all further discussions with Sinn Fein were predicated on the notion that, through Sinn Fein, the Governments were dealing with the Republican Movement as a whole. Hence, on 24 September 1997 the two Governments "reiterate[d] that they expect the Republican Movement as a whole to honour the commitments to the Mitchell Principles made by Sinn Fein". On 20 February 1998 the Governments stated that as "[they] have previously made clear they expect the Republican Movement as a whole - that is Sinn Fein and the IRA - to honour the Mitchell Principles observed by Sinn Fein... They characterised the IRA as a group 'with a clear link to Sinn Fein'. That reflects the position that has been taken through the negotiations".
4.15 From their discussions with the International Body in 1995 to the signing of the Agreement in April 1998, Sinn Fein did little to dissuade the Governments from maintaining their stated position that Sinn Fein and the IRA were inextricably linked. Indeed, Sinn Fein encouraged them to hold onto this view by making commitments to achieve paramilitary disarmament during all-party negotiations.
4.16 The Governments, Parties and International Commissions all know that Sinn Fein and the IRA are 'two sides of the same coin'; privately, republicans admit it themselves. No one should be mistaken - if Sinn Fein were genuine about paramilitary disarmament they would have achieved it by now, just as they could have achieved it in 1995 or 1996. Sinn Fein has plenty of influence over the IRA; they have just refused to exercise it.
4.17 To Achieve the Decommissioning of all Paramilitary Arms Within Two Years.... and in the Context of the Implementation of the Overall Settlement.
For the understandable reason of controlled flexibility, the Agreement did not contain a precise date for the commencement of decommissioning. But, as was the case with prisoner releases, it did contain a completion date and a completion presupposes a commencement.
4.18 Moreover, it is implicit in paragraph 6 of the Decommissioning section of the Agreement that decommissioning would start as soon as the decommissioning schemes became legally operative at the end of June 1998. The relevant section of the Agreement states: "Both Governments will take all the necessary steps to facilitate the decommissioning process to include bringing the relevant schemes into force by the end of June". There is a clear implication that decommissioning was to begin immediately: the Governments were seeking to facilitate progress by having schemes in place by June 1998.
4.19 In Tony Blair's letter to David Trimble of 10 April 1998, he underlined the view of the British Government. He stated that "in our view the effect of the decommissioning section of the agreement, with decommissioning schemes coming into effect, is that decommissioning should start straight away". In other words, the Prime Minister's analysis of the Agreement was that it provided for the immediate commencement of disarmament.
4.20 Furthermore, there is no specific start dates in the Agreement in relation to prisoner releases, or security normalisation. Yet both began almost immediately. The similarity of the provisions relating to decommissioning and prisoner releases are striking: both required schemes, coming into effect in late June, before they could begin; and both had no specific start date.
4.21 The idea that parts of the Agreement - most obviously prisoner releases and decommissioning - should start immediately and run in parallel has been articulated by the Secretary of State:
"To build trust between the groups we must move in parallel on the different elements - prisoners, decommissioning, the North/South Ministerial Council and the new Northern Ireland Assembly - if we are to make progress". (1 June 1998)
"We should go forward in a positive way to build trust and confidence on both sides so that decommissioning and the other aspects of the Agreement can move in parallel". (10 June 1998)
4.22 These sentiments are expressed in the Agreement. Paragraph 3 of the Decommissioning section ends by saying that decommissioning should occur "in the context of the implementation of the overall settlement". While some parts of the Agreement have been (and are being) implemented on an evolutionary basis, and a more direct approach has been adopted in implementing other aspects of the Agreement, there has still been movement on every issue but decommissioning. Yet the Agreement makes it clear that decommissioning was to occur in the context of the implementation of the overall settlement. For the paramilitary-related parties to claim that they are not in breach of the Agreement by their refusal to decommission is a manifestly false testimony.
4.23 Under the terms of the Agreement, the Governments undertook to:
"... put in place a mechanism to provide for an accelerated programme for the release of prisoners, including transferred prisoners convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences... the intention would be that, should circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme would be released at that point".
The Governments also sought "to enact the appropriate legislation to give effect to these arrangements by the end of June 1998".
To date the British Government has released 293 prisoners. In so doing it has honoured their obligations, despite the fact that decommissioning - as envisaged in the Agreement and by the Prime Minister - has not begun.
4.24 However the Governments had an equally important obligation to honour. It was outlined in paragraph 2 of this section of the Agreement:
"Prisoners affiliated to organisations who have not established, or are not maintaining a complete and unequivocal ceasefire will not benefit from the arrangements. The situation in this regard will be kept under review".
The recent IRA murder of Charles Bennett and the exposure of an IRA arms importation operation in the US and Republic of Ireland led to a review of the state of the IRA ceasefire. In defiance of security advice and the criteria laid down by the Prime Minister at Balmoral on 14 May 1998, the Secretary of State inexplicably ruled that the IRA ceasefire was still in tact. At Balmoral, the Prime Minister specifically identified tangible ways of judging the authenticity of the ceasefires. He stated that there should be "an end to bombings, killings and beatings, claimed or unclaimed; an end to targeting and procurement of weapons..." Clearly the IRA is in breach of these criteria. In this context, particularly given the response of the Chief Constable who identified the IRA as being responsible for the Bennett murder, the Secretary of State's decision represents an abrogation of responsibility and a failure to uphold both spirit and letter of the Agreement.
4.25 The failure of the Government in this regard has boosted the paramilitaries and encouraged their political partners to remain recalcitrant in frustrating the implementation of other parts of the Agreement, notably on decommissioning.
4.26 In keeping with other aspects of the Agreement that were to be implemented immediately, security normalisation began straight away. The Agreement committed the British Government to making
"progress towards the objective of as early a return as possible to normal security arrangements in Northern Ireland, consistent with the level of threat, and a published strategy dealing with:
4.27 The Government has moved great lengths to meet its obligations. The progress made:
(i) Troop Levels
Troop levels have been reduced to 15,000, the lowest level at any time since 1970.
Three battalions, the Rural Reinforcement Battalion (RRB), the Urban Reinforcement Battalion (URB), and the Drumadd Roulement Battalion (DRB) returned to the mainland between September and November 1998.
(ii) Military Patrolling
Overall military patrolling has been reduced by two-thirds.
Military patrolling has ceased altogether in Belfast, Londonderry, Strabane, Omagh, Castlederg, Cookstown, Dungannon and Pomeroy.
In South Region (Armagh) patrolling has been reduced by one-third.
Helicopter flying has been reduced by one-third in Northern Ireland as a whole, and one half in South Region (Armagh).
The RUC now operate without army support throughout most of Northern Ireland.
(iii) Removal and Closure of Army Installations
In October 1998 the Letterkenny, Muff and Hump vehicle checkpoints were vacated, the Crumlin Road Sangar and R16 (Newry-Dublin road) Sangar were demolished, and it was announced that Fort Whiterock would close.
In November 1998 the three permanent vehicle checkpoints at Bessbrook were demolished and work began on the demolition of the Letterkenny vehicle checkpoint.
In January 1999 work began on the Fort Whiterock demolition and seven Fermanagh base patrols (Mullan bridge, Roscor bridge, Wattle bridge, Gortmullan, Annaghmartin, Killyvilly and Clonatty bridge) were closed.
February 1999 saw the closure of the Muff, Aughnacloy and Hump vehicle checkpoints.
It was announced in April 1999 that the security forces would return land to Crossmaglen GAA.
In May 1999 the demolition of Fort Whiterock was completed ahead of schedule.
4.28 Just as implementation of the Agreement began almost immediately with regard to the creation of the Commissions and prisoner releases, so the Government has also honoured its commitments in relation to security normalisation. Although the promised strategy paper on security normalisation has yet to be published, the Government has attempted to act in good faith and in line with the Agreement, even in the absence of paramilitary decommissioning.
5.1 At the outset this Paper sought to measure the extent to which the Belfast Agreement has been implemented, and to establish the extent to which the parties and Governments have honoured their obligations.
5.2 The implementation process - as envisaged in the Agreement - was predicated on a dual-stranded approach. There were parts of the Agreement that could be realised almost immediately, with no legal impediments to constrain implementation. These aspects included the provisions relating to the establishment of the Commissions, security normalisation, prisoner releases and, crucially, decommissioning.
5.3 Implementation of the other aspects of the Agreement could not occur straight away. The Agreement makes it clear that implementing the constitutional and institutional provisions can only happen as quickly as Parliamentary exigencies, for example, allow. The creation of institutions and significant constitutional changes cannot happen overnight. The examples of Scotland and Wales demonstrate this. There, the devolution referenda were held in September 1997, yet powers were only transferred in July 1999. Hence, an "evolutionary" approach was adopted in implementing the constitutional and institutional aspects of the Belfast Agreement.
5.4 Despite the fact that this common-sense approach to implementation is provided for in the Agreement, Sinn Fein has claimed that the progressive or piecemeal approach to bringing the institutions into being somehow demonstrates that Ulster Unionists are not committed to overall implementation. The facts plainly contradict their argument. From September to December 1998 negotiations into establishing Strand One and Two institutions were unceasing. The UUP worked vigorously to set up the North/South Ministerial Council and implementation bodies. We even proposed that the NSMC should meet in 'shadow' form, a proposal rebuffed by the SDLP. We worked hard to reach agreement on the Northern Ireland Departments. By 18 December agreement was eventually reached and approved by the Assembly on 15 February 1999. In March Parliament passed the relevant Orders giving statutory force to the Departments approved by the Assembly. In the same month, Treaties were signed between the British and Irish Governments to establish the North/South and British-Irish institutions.
5.5 The approach to the implementation of these aspects of the Agreement was necessarily evolutionary. It was only in March 1999 - when the Departments were created and provided for in law - that consideration could be given to Executive Ministers to head these Departments. Sinn Fein/IRA claims that the Executive should have been established as soon as the First Minister and Deputy First Minister were appointed are without basis in the Agreement.
5.6 Since March the failure to establish an Executive has come from the refusal of those paramilitary-related parties to honour their commitments to decommission. As noted, decommissioning was one of the aspects of the Agreement that was to begin straight away; the law was in place to facilitate this from June 1998. Tony Blair made it clear that, in his understanding of the terms of the Agreement, "the effect" of the relevant provisions of the Decommissioning section was that disarmament should commence immediately.
5.7 The Agreement specifically links decommissioning to the creation of an Executive: paragraph 1 of the Decommissioning section of the Agreement insists that prospective Ministers "recall the provisions of paragraph 25 of Strand 1 above". Paragraph 25 outlines the sanctions to be applied to those who fail to uphold the Pledge of Office, and it threatens "exclusion or removal" from office. In other words, one cannot refuse to decommission and still claim to be committed to democratic and non-violent means. One cannot hold onto stockpiles of weapons and claim not to "threaten force for political purposes".
5.8 Throughout the process of negotiation, decommissioning, alongside prisoner releases and security normalisation, was designated a 'confidence-building measure'. For republicans, prisoner releases and security relaxation were the 'litmus test' of the British Government's authenticity. For unionists, decommissioning was the reciprocal gesture to be made by republicans, their 'litmus test' of the Republican Movement's commitment to the process. This is why the Agreement provides for decommissioning, prisoner releases, security normalisation and the equality provisions to work in parallel, and this is why there were no legal impediments to the immediate implementation of these aspects of the Agreement.
5.9 By refusing to acknowledge this, the Republican Movement has been guilty of more than simply contravening the Belfast Agreement. Their entire "commitment" to peace and democracy can now be seen as little more than a tactic, a means of squeezing as much as possible out of the Governments while still reserving the right to go back to the 'armed struggle'. The recent murder of Charles Bennett and renewed IRA arms importation only serve to underline this. Republicans must demonstrate a genuine commitment to peace and the only way they can do this is by decommissioning. Only in this context will the people of Northern Ireland be convinced that militant republicans have turned from violence to democracy.
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