Mr. Mark Durkan:

On the Deputy's observations about Articles 2 and 3 as changed by the Good Friday Agreement, I want to make sure that I do not fail to mention how much care the then Taoiseach, Attorney General and advisors such as Mr. Martin Mansergh and the whole Irish Government team took with the language around both articles. It was so judicious and nuanced. Genius went into that wording. I recall John Hume making the point at the time that some of it could perhaps appear on a passport. I garnered from Bertie Ahern's response that that idea had occurred to him or was already afoot. Of course, the wording in Article 2 is now part of the artwork on Irish passports. I know new artwork commissioned; I hope the language of Article 2 remains in there and maybe some of the language of Article 3 as well. I understand that the Irish Government at the time felt that if they put Article 3 into the artwork of the passport, that it might be misunderstood or misconstrued in some way. It was a point of sensitivity that Article 2 featured on it. I do think there is more we should be doing.

In terms of the potential of North-South institutions, we agreed limited areas in 1998. There were negotiations after the Agreement and we got agreement in December 1998 on what the first areas of co-operation would be and the first implementation bodies. Those were more limited than we wanted them to be. For instance, we wanted the body that was set up as trade and business development to be trade, business development and inward investment. The unionists did not want inward investment to be included. As it happened, the veto on it came from the Tánaiste in Dublin at the time, Ms Mary Harney. She did not want inward investment in there. The Industrial Development Authority Ireland, IDA, did not seem to have as many issues with this as the Industrial Development Board, IDB, did in the North. We should be looking at those again. Let us remember that the original terms included that the Commissioners of Irish Lights was meant to be in with the Foyle-Carlingford Commission. That could not happen. That was meant to be replaced; it never was. We need to be looking at all of these things for the reasons the Deputy and others, including Senator Ó Donnghaile, have said.

I have to confess that I am the person who wrote that paragraph about designation. It was written because the position in the talks was that parties wanted to have similar protections in the institutions coming out of the talks as were in the ground rules of the talks themselves. One of the ground rules in the talks was the rule of sufficient consensus. We borrowed this idea from all of the lessons the different parties and governments had learnt from the South African process. The sufficient consensus rules said that a proposition would stand if it was supported by parties who were supported by a majority of the people, including majorities of unionists and nationalists, respectively. When that protection was agreed in the talks, including by the DUP and the UK Unionist Party, when they were still in the talks, parties felt that it would be odd not to have such a safeguard in the institutions coming out of those talks. As an example of examining how it would work, it could have been done on a party basis, but the feeling was it would have to be done it on an individual MLA basis to allow for different parties that might emerge in the future and to allow for independents, etc., so it would be done by MLA. That is why it was written in those terms. I said long ago and it was part of what I got into trouble for calling the "ugly scaffolding" of the Agreement. I recall at the time, when we negotiated the Agreement, we said that some of these provisions would, we hoped, be biodegradable and that as the environment changed, they could dissolve and our reliance on them would change. Part of the thinking also was that a robust and articulate bill of rights, as we hoped would emerge under the Agreement, would itself be a significant safeguard and would mean that a lot of these checks and balances would not have to play out as vetoes inside the institutional decision-making.

However, it does need to change. There are different ways this can be done. Obviously, not all parties will agree to a change. In the current context, unionist parties would say that any attempt to move away from this is an attempt to weaken the position of unionists, at a point where this might become a more significant protection for them, and that we are trying to remove and dissolve it in light of all the arguments around the protocol, etc. There are ways of doing things, for instance, reverting to the idea that the Assembly has to jointly elect First Ministers, rather than parties being given the exclusive private right to nominate respective posts. That joint election should no longer rest exclusively on parallel consent, which is the 50% + 50% + 50% rule, but it could be done by the other qualified weighted majority or by a two-thirds majority, which would mean it would not then depend on designation. In the current situation, it would mean, for example, that one party would not be able to prevent the formation of the Executive, just by refusing to exercise its exclusive right to nominate a deputy First Minister. That is a way of reducing the impact of designation, even if we cannot entirely remove it from the provisions. I do not think you would get cross-party agreement to completely remove it, but you could severely reduce its impact and create other alternatives in that respect, given that there are more people designated as "other", etc.