FROM D J R HILL

POLITICAL DEVELOPMENT TEAM

17 JUNE 1992

cc: PS/PUS (L&B)

PS/Mr Fell

Mr Thomas

Mr Ledlie

Mr Bell

Mr Alston

Mr Watkins

Miss Mills

Mr Leach

Mr Dodds

Mr Rickard

Mr Maxwell

Mr D A Hill

Mr Stephens

Mr Hallet

Mr Archer RID

HMA Dublin

MS LODGE

TALKS: PAPER ON SUCCESSOR TO THE AGREEMENT

1. Thank you for sending me a copy of you [sic] minute of 16 June to Mr Cooke with its accompanying draft paper.

2. I have a number of comments of varying degrees of significance:

a. the list of objectives in paragraph 1 might be expanded to include as a new first objective, "to maintain an institutional framework to facilitate and support constructive co-operation between the two Governments, particularly in respect of Northern Ireland matters. This is especially important in respect of security co-operation and as a means of encouraging the development of wider public confidence in the security forces and in the administration of justice in Northern Ireland";

b. the current first objective might be clearer if it were rephrased to read, "... widespread support and is conducive to a comprehensive political accommodation in relation to Northern Ireland";

c. the current second objective might be extended to take account of any discussions in strand 2, by adding, "and of any new institutional arrangements for co-operation and consultation established between new political institutions in Northern Ireland and the Irish Government";

d. I rather agree with the point in paragraph 2 (i) but you might note that the arrangements made last year and set out in Mr Brooke’s proposals of 14 May implied that the Northern Ireland parties would be kept very closely in touch with developments in Strand 3 and would be able to meet the two Governments to discuss progress, so the 12 June agreement has not changed things that much;

e. paragraph 3 should note that the DUP, in plenary and sub-Committee, has explicitly acknowledged that the two Governments will continue to discuss non-transferred matters in Northern Ireland on much the same basis as at present;

f. the section on the "Unionist position" could also include a paragraph each on Unionist views about the scope of any successor to the Agreement (ie a British-Irish agreement), including the question of reciprocity and the current Unionist desire that Strand 3 should tackle Articles 2 and 3 of the Irish Constitution; and the political reasoning behind them;

g. I do not understand the last four words of paragraph 4. If it is a reference to the SDLP's original proposal for a person to be nominated by the Irish Government to be a member of an Executive Commission to exercise executive and legislative responsibilities in the transferred field in Northern Ireland, I think it may be misconceived. The SDLP made quite clear in sub-Committee that they would not envisage any such Commissioner "representing" the Irish Government, whose role would cease with the nomination;

h. in paragraph 5, I agree with your health warning about the Article by Article approach. Indeed, I wonder whether, even internally, we should avoid discussing Strand 3 issues in terms of variations on the present Agreement and simply work up a list of the issues we would like to see covered in a new Agreement;

i. in the second sentence of paragraph 5 I wonder whether "concede" is the right word as it implies that Unionists, or Northern Ireland political institutions at least, would have responsibilities in these areas: "accept a continuing role" might be better. At the end of the sentence a more natural quid pro quo for Articles 2 and 3 would be strong North/South institutions";

j. I agree with your general comments in paragraph 6, but the preamble can serve a useful function. For example, it is the preamble of the current Agreement which distinguished between "those who aspire to a sovereign United Ireland achieved by peaceful means and through agreement" and "those who wish for no change in the present status of Northern Ireland" and thus enabled us to construe Article 1 (a) in the most helpful way;

k. In paragraph 7, we should also emphasis [sic] the need to secure a [sic] explicit acknowledgement that the constitutional status of Northern Ireland as a part of the UK could and should (not merely "would") only change with the consent of a majority of the people of Northern Ireland. I would regard this as very important;

l. I am not aware that the SDLP has ever used the argument in the second half of the fourth sentence of paragraph 8: I suggest it be deleted;

m. on the general question of committing ourselves to bring about Irish unity on the basis of a simple majority of the people of Northern Ireland, I think my views are well enough known. The logic of the situation (and of the SDLP analysis, for that matter) points to Irish unity requiring the support of a majority of both main parts of the community in Northern Ireland;

n. the issue mentioned in paragraph 9 (i) is of course a matter for discussion in the North/South Strand and we should be careful not to pre-empt that;

o. paragraph 9 (ii) needs to cover something equivalent to the first two sentences of Article 2 (b) of the Anglo-Irish Agreement, at least in relation to non-transferred matters in Northern Ireland, as well as the scope for co-operative action etc;

p. I am afraid I do not follow the logic in paragraph 10 (i). I would have thought - see my comments on HMG's objectives - that we would positively want any successor Conference to have a continuing role in respect of "confidence" issues;

q. similarly, in respect of 10 (iii), co-operation in security matters is the one area of the Agreement which is not controversial for Unionists. I can see some advantage in building that up and no advantage at all in generalising it in the way proposed;

r. as regards paragraph 12 (i), I continue to see difficulties in this approach. In the first place there would be no point in engaging Northern Ireland Ministers or Committee Chairmen per se in any such discussion as it would, by definition, deal with matters outside their responsibility. The question is where the balance of advantage lies in seeking to secure a local political input to the Conference. One problem is that there will be a number of aspects of excepted and reserved matters which the Government is unlikely to be able to discuss freely with local politicians and which we will continue to want to discuss freely with the Irish Government. We will want to establish separate bilateral channels to secure the views of local politicians on those subjects, especially security, and there could be some advantages for HMG and having local politicians present at any discussion with the Irish Government on particular issues, such as border road closures. The Unionists are likely to welcome and seek such opportunities. The Irish Government has apparently not jibbed at the idea but I wonder whether they and the SDLP will, on reflection, want their best channel of communication to HMG diluted in this way. We may be able to agree a basis on which representatives of any new political institutions in Northern Ireland could attend some (parts of) meetings but not others, but it all seems rather messy and unsatisfactory. The potential benefits for HMG seem pretty minimal and on balance I would not give it the status of an objective;

s. on paragraph 12 (ii) I continue to hope that a resolution of the constitutional difficulties could help here, perhaps by providing a basis on which we could persuade the Unionists to regard the Secretariat as a piece of only slightly abnormal diplomatic machinery;

t. paragraph 14 might note that the Panel could have a role in respect of appointments made by the Secretary of State and in monitoring appointments by Heads of Departments (ie in the transferred area);

u. in relation to paragraph 15, my sense of the reciprocity debate is that HMG has no interest in getting involved in matters such as appointments within the Republic which are very properly the concern of the Irish Government. Perhaps the clinching argument, in my view, is that any such development would tend to reinforce the existence of the two main political traditions in Ireland and appear to confirm HMG as the champion of one with the Irish Government the champion of the other. The same point applies in paragraph 16;

v. in paragraph 19, I assume the Governments would continue to have a role in seeking funds for the IFI, even if the administration were handled on a North/South basis;

w. paragraph 20 raises the question whether any successor Agreement should be drafted on the assumption that there are functioning political institutions in Northern Ireland. I suspect it would need to incorporate "default" clauses which would recreate something like the present Agreement in the event that any new institutions collapsed.

Insofar as the paper is intended as a brief for the Government Team in Strand 3 generally it perhaps needs a cross-reference to the papers on "The Constitutional Issue" and on the amendment of Articles 2 and 3, as these seem now to be issues which we may need to pursue in Strand 3.

SIGNED David Hill

D J R HILL

POLITICAL DEVELOPMENT TEAM