In addition, the Joint Declaration dealt with the issue of the restoration of the political institutions, which were described as ‘the democratic core of the Agreement’.34 The Joint Declaration drew attention to the provision35 in the Agreement envisaging that the Northern Ireland assembly and the Oireachtas should consider developing a joint parliamentary forum.36 Among the initiatives considered by the Joint Declaration was the devolution to the restored assembly of responsibility for policing and justice matters.37 This analysis also contemplated the possible establishment of a North/South implementation body related to justice and policing following such devolution.38 The declaration committed both governments to the establishment of a new independent body to monitor and report on the carrying out of commitments relating to the ending of paramilitary activity and the programme of security normalisation.39
On 15 May 2003, the Westminster parliament legislated to allow for the postponement of the assembly elections, which had been due to take place that month.40 Legislation was enacted by the Westminster parliament in September 2003 to give effect to the agreement on monitoring and to provide for consequential exclusion or censure of politicians where necessary.41 The formal agreement between the two governments setting up the Independent Monitoring Commission was signed on 25 November 2003.42 The Commission was not expressly envisaged by the Good Friday Agreement – a point of objection for republicans – but rather was designed to police the commitments on activities of paramilitary groups and security normalisation by the British government. In the zero-sum logic that sometimes applies in Northern Ireland, some unionists objected to it by reference to the role of the Irish government in the process. The Agreement provided for a power to determine breaches of the pledge of office:
(1) The Commission may consider a claim by any party represented in the Northern Ireland Assembly:
(a) that a Minister, or another party in the Assembly, is not committed to non-violence and exclusively peaceful and democratic means; or
(b) that a Minister has failed to observe any other terms of the pledge of office; or that a party is not committed to such of its members as are or might become Ministers observing the other terms of the pledge of office.
(2) Insofar as a claim under paragraph 1(b) relates to the operation of the institutional arrangements under Strand One of the multi-party Agreement, the claim shall be considered only by those members of the Commission appointed by the British Government ...43
The agreement establishing the commission was later terminated with effect from March 2011,44 as was the agreement establishing the Independent International Commission on Decommissioning.45
The Second Assembly: 2003–2007
Following the November 2003 election,46 the DUP and Sinn Féin emerged as the largest parties representing unionism and nationalism/republicanism respectively, displacing the UUP and the SDLP.47 Sixty unionists were elected. Nationalist representation remained at 42 out of 108 (as before), and others amounted to 6: a unionist gain at the expense of others, in the polarised atmosphere of a suspended executive.
Following this, a review of the Agreement got underway, and a plenary meeting of the review was held at Parliament Buildings, Stormont, on 3 February 2004. In his opening remarks to that meeting, the Minister for Foreign Affairs Brian Cowen stressed that:
As the Secretary of State outlined, it is the two Governments’ view that the fundamentals of the Agreement must remain in place. The review is about the operation of the Agreement … the Good Friday Agreement is both an international treaty and a part of the Irish Constitution. It will come as no surprise to anyone here, therefore, when I say that we take its provisions very seriously.48
He went on to say that the fundamentals of the Agreement were not up for negotiation and that, without being prescriptive, the fundamentals would, in his view, include the constitutional principle of consent, partnership government in Northern Ireland on an inclusive basis, the interlocking institutions of the Agreement including its North/South and East/West dimensions, the entrenchment of human rights and equality for all, the removal of the use and threat of paramilitary violence, the normalisation of security arrangements and the consolidation of the new policing and criminal justice arrangements.
2004 – Agreed Declaration on Citizenship under the Agreement
In the context of proposed changes to the Irish law and Constitution to tighten qualification for citizenship, the Irish government responded to criticisms that such change was in breach of the Agreement49 by agreeing an interpretative declaration with the United Kingdom government in April 2004, which provided that:
the two Governments hereby give the following legal interpretation: that it was not their intention in making the said Agreement that it should impose on either Government any obligation to confer nationality or citizenship on persons born in any part of the island of Ireland whose parents do not have sufficient connection with the island of Ireland: and therefore the two Governments declare that proposal to amend Article 9 of the Constitution of Ireland so as to provide that a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of his or her birth, at least one parent who is an Irish citizen or is entitled to be an Irish citizen, is not entitled to Irish citizenship or nationality, unless otherwise prescribed by law, is in accordance with the intention of the two Governments in making the said Agreement and that this proposed change to the Constitution is not a breach of the said Agreement or the continuing obligation of good faith in the implementation of the said Agreement.50
It was further provided that the rights of all persons referred to in the provisions of the Agreement51 would be preserved by legislation.52 In short, the ‘declaration’ asserted that their intention in 1998 was not to impose an obligation to confer citizenship on persons born in Ireland who did not have any other sufficient connection with the island of Ireland. The declaration paved the way for the referendum on the 27th Amendment to the Constitution on 11 June 2004, which curtailed the constitutional right to acquire citizenship on the basis of birth in Ireland. This was followed up with a statutory provision restricting such citizenship with effect from 1 January 2005.53
2004 – ‘Comprehensive Agreement’ Following Leeds Castle Talks
In July 2004, a letter was issued to political parties jointly by Secretary of State Paul Murphy and Minister for Foreign Affairs Brian Cowen outlining details the arrangements for of the resumption of talks in September 2004.54 Talks took place on 1 September 2004, and subsequently on 16 to 18 September 2004, at Leeds Castle. On 8 December 2004, further negotiations ended without agreement. Despite this failure, the two Prime Ministers then published the draft Comprehensive Agreement,55 which would have involved decommissioning of all weapons, an agreement that the IRA would instruct its members not to endanger the Agreement, confirmation of decommissioning including photographs, a Sinn Féin Árd Fheis to decide on support for new policing arrangements, devolution of criminal justice and policing powers to the assembly and re-establishment of the institutions by agreement.56
The December 2004 proposals involved the introduction into the British parliament of legislation to amend a number of aspects of the Northern Ireland Act 1998 and related legislation, which would also provide for the removal of the power of suspension.57 Devolution of policing powers would also take effect by means of primary legislation.58 Emergency legislation would be introduced immediately to establish a Shadow Assembly in December 2004,59 to be followed in January 2005 by the enactment of necessary legislation amending existing legislative arrangements on Strands One to Three.60 Detailed proposed changes to the operation of the Agreement, including changes to the Northern Ireland Act 1998, were set out. These included proposals to enhance collectivity and accountability, including the agreement of a draft programme for government and budget, which would have to be approved by the assembly on a cross-community vote.61
In a key change, the appointment