Dáil debates

Wednesday, 25 October 2006

Priority Questions

Northern Ireland Issues.

3:00 am

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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Question 79: To ask the Minister for Foreign Affairs if it is the Government's view that a referendum may be necessary on the St. Andrews agreement and, if so, his views on the circumstances of such a public consultation. [34713/06]

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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The proposed agreement published by the Governments at St. Andrews comprehensively addressed the core issues standing in the way of the restoration of the power-sharing institutions of the Good Friday Agreement. It sets out a clear way forward for all parties to commit to the full operation of stable power-sharing government and the North-South and east-west arrangements and to full support for policing and the criminal justice institutions, including the policing board. It also sets out in some detail the practical changes proposed to the operation of the institutions, the arrangements for a financial package and the timetable for implementation of the agreement.

We have asked the parties to confirm acceptance of the agreement by 10 November so that the timetable we have laid out for the nomination of the First Minister and Deputy First Minister in November and the restoration of the executive in March can be met. The timetable provides that, following endorsement of the St. Andrews agreement by the parties, legislation will be passed at Westminster in the week beginning 20 November to address a number of practical changes to the operation of the institutions of the Good Friday Agreement. These changes arise from the 2004 review of the Agreement and more recent detailed engagement between the parties, including in the preparation for government committee. This engagement is ongoing and as the parties continue their discussions in the coming weeks, we will closely monitor further developments.

The timetable for implementation of the St. Andrews agreement also foresees an electoral endorsement in March next year. As the Taoiseach stated in this House last week, it is clear from our discussions at St. Andrews that some form of electoral endorsement of the agreement as a whole will be required before the formation of an executive. The form such an endorsement would take in Northern Ireland is not yet decided, nor is the question of whether a referendum might be required here.

Before coming to a conclusion on this matter, the Government will want to know that parties are prepared to continue working within the framework we outlined at St. Andrews and to consider the outcome of the discussions between the parties on institutional issues. These discussions are continuing at Stormont in the framework of the preparation for government committee, which is likely to continue its work at least until the end of this month. The Government does not intend to rush to judgment in advance of clarity on these points. Any further developments will then be taken into account by the Attorney General, whose advice will guide our further considerations at Government.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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Half of my question was disallowed by the Office of the Ceann Comhairle. In a communication, the Ceann Comhairle stated:

I regret that I have had to disallow the underlined part of the following question tabled by you:

To ask the Minister for Foreign Affairs

The Minister has no official responsibility to Dáil Éireann for advice that is sought or received from the Attorney General.

Although this matter can be pursued elsewhere, I do not agree with the Ceann Comhairle. Perhaps the Attorney General can be asked a question through the Taoiseach.

Turning to the practicalities of this issue, I hope the ongoing talks are a success. My question simply asked the Minister for Foreign Affairs if it is the Government's view that a referendum may be necessary. There are some fundamental issues beyond the finalised text, upon which the Government may have received an opinion. The British-Irish Agreement is lodged in Article 29.7.2° of the Constitution, while the agreement produced by the multi-party talks is attached to the British-Irish Agreement by way of an annexe. I do not have time, nor would it be appropriate at Question Time, to discuss whether the two documents form an integral piece. Is it not possible, on a reading of the Crotty case, to give a straightforward opinion as to whether Article 28, which deals with decision making institutions of this State, is affected in principle by any delegation of executive powers outside the borders of the State? That is a matter upon which one can have a forward opinion, irrespective of the detail of the final outcome of the talks.

It is extraordinary that the Attorney General's opinion, whether it exists, cannot be a matter of accountability. Far more serious, however, is the issue of whether it is possible to have devolved arrangements for decision making which may or may not be affected by Article 28, as understood in the review of the Crotty case, on foot of the fact that the British-Irish Agreement and its annexe, form part of Article 29.7.2° of the Constitution. On that substantial matter, it is surely important to have an opinion to provide a basic orientation on the issue. I hope substantial agreement will be reached on a text.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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The practice of the Minister for Foreign Affairs or any Minister being answerable to the Dáil on the basis of the Attorney General's advice has not changed since Deputy Michael Higgins was a Minister.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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I always took the Attorney General's advice very seriously.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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The Deputy might say that was then and this is now, but it is a fact that the Attorney General is not answerable to this House and Ministers are not answerable for the Attorney General's advice. The Attorney General is the legal adviser to the Government.

What was agreed at St. Andrew's was a political document. The document was whittled out after two and a half days of intensive discussions. Of course, the Attorney General was aware of the contents as they were evolving. I and the Taoiseach, on separate occasions and together, as well as the Tánaiste, were in contact with the Attorney General's office and the Attorney General personally regarding the ongoing discussions. It is only a political document.

Only when the Attorney General sees the colour of the legislation that is proposed by the British and flows from this agreement can he make a determination as to whether a referendum is required on an amendment to an international agreement. Parties on the other side of the House would be the first to complain if the Government proceeded to make fundamental changes to the Good Friday Agreement. We will not do this off the tops of our heads or, as some people snidely remarked, for partisan reasons. We will do it based on the advice of the Attorney General and nothing else. If the Attorney General advises that a referendum should be held in the South, we will hold one irrespective——

Photo of John GormleyJohn Gormley (Dublin South East, Green Party)
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The start of the election campaign.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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Who is afraid of the electorate?

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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If that is his attitude, God help Ireland if the Deputy ever gets into Government. If the Deputy thinks decisions are made on a partisan basis——

Photo of John GormleyJohn Gormley (Dublin South East, Green Party)
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The Minister would never do that.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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——they are not. In the unlikely event that the Deputy arrives on this side of the House, he will learn that it is very easy to be on that side of the House——

Photo of John GormleyJohn Gormley (Dublin South East, Green Party)
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Fianna Fáil would never act out of party political interest.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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One has a responsibility when one is on this side of the House——

Photo of John GormleyJohn Gormley (Dublin South East, Green Party)
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It is way above all that.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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——and I will take none of that nonsense from the likes of the Deputy.

Photo of Bernard AllenBernard Allen (Cork North Central, Fine Gael)
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Remember the Anglo-Irish Agreement.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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The St. Andrew's agreement is nothing more than a political agreement between the two Governments. The parties have yet to commit to it. With regard to whether there is an election or a referendum in the North, the Taoiseach covered that in his replies to questions in the House this morning.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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They could be held on the same day.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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I appreciate the Minister's reply and I am not attributing any ulterior motive.

Photo of Bernard AllenBernard Allen (Cork North Central, Fine Gael)
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The Deputy protests too much.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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It is not the colour of the agreement that will decide whether the Government needs an opinion from the Attorney General on a constitutional referendum. The reason I made specific reference to the Crotty case is that there are circumstances where one could invoke that case and there are other circumstances in which it would not be appropriate to invoke it. On the basis of the framework opinion relating to, for example, that which is protected constitutionally within Article 28, it is possible to arrive at an opinion that there will be some or any change.

My case is not solely based on the fact the British-Irish Agreement and annexe are there together or are, in fact, an integral document or that they are simply mentioned in Article 29.7.2 but that any movement would so affect Article 28 that it would make a constitutional referendum necessary. It may well be the Government decision is to wait to see that upon which it will seek a consultation, but on the general principle as to whether there is, as it were, a disturbance of Article 28's protection of institutional decision-making within the territory that is the State and so forth, one might be able to anticipate that a constitutional referendum will be necessary.

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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Much of what the Deputy said was a comment, not a question. The tenor of the discussion with the Attorney General was in the context of the implications of the Crotty decision and whether the Government can, unilaterally and without reference to the people, make any amendment to the Good Friday Agreement or any international agreement. We are awaiting the Attorney General's view but his view cannot be given until he sees the legislation relating to the institutional arrangements, particularly those in Strand 1 and Strand 2.