On 10 April 1998, ‘the participants in the multi-party negotiations’ concluded ‘The Northern Ireland Peace Agreement’ (also known as the Belfast or Good Friday Agreement), that ended the so-called Troubles in Northern Ireland. The Agreement consists of eleven parts that deal with subjects like ‘Constitutional Issues’, ‘Rights, Safeguards and Equality of Opportunity’ and ‘Policing and Justice’. In an Annex to the Agreement, the Governments of the Irish Republic and of the United Kingdom and Northern Ireland (who were among the participants at the negotiations) endorsed the Agreement. Both the Agreement and the Annex provided for the establishment of a number of institutions. These institutions included a North/South Ministerial Council (provided for in the part of the Agreement called ‘Strand Two’). The Agreement gives to this North/South Ministerial Council the responsibility:
‘to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South.'
Given the importance of the Agreement and the Annex in bringing an end to the Troubles in Northern Ireland, the Agreement and the Annex remain a key component of both domestic and foreign policy of the government of the United Kingdom and Northern Ireland. In the ‘Brexit’ negotiations that are now under way to arrange the departure of the United Kingdom and Northern Ireland from the European Union, not only the government of the United Kingdom and Northern Ireland, but also the European Union have every reason to honour the Agreement and the Annex. This is all the more so because the Agreement states: ‘We pledge that we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements […] are interlocking and interdependent’.
This explains the rather intricate, but inevitable, formulations that are contained in the ‘Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union’, of 8 December 2017. The joint report mentions ‘the unique circumstances in Northern Ireland’. It explicitly refers to the Belfast Agreement, that ‘must be protected in all its parts’. The report lays down inter alia:
- ‘The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements’,
- ‘In the absence of agreed solutions […] the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market’,
- 'Both Parties recognise that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area), while fully respecting the rights of natural persons conferred by Union law’.