The challenge by two leading Ulster Unionists to the Anglo-Irish Agreement in the mid-1980s provoked serious concern in Dublin and London before it was eventually rejected by the High Court in Dublin, documents reveal.
Brothers Christopher and Michael McGimpsey challenged the November 1985 agreement, arguing that the Irish government had acted unconstitutionally by entering into the treaty with London.
Articles 2 and 3 of the Irish Constitution claimed jurisdiction over the whole island, and Dublin had implicitly renounced that by accepting that Northern Ireland would stay part of the UK unless the majority decided to change, they contended.
Eventually, the High Court rejected the McGimpseys’ case, ruling that Dublin had acted constitutionally and that an international agreement recognising the principle of consent did not mean the constitutional claim itself had been abandoned.
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However, the files released by the Department of Foreign Affairs illustrate the seriousness with which the brothers’ court case was taken in Dublin, but also by the British government – with both fearing that it could unravel the agreement.
London feared that the Irish government could be forced to give away hostages to fortune in fighting the case in court, the secretary of the Department of Foreign Affairs, Noel Dorr, told the attorney general’s senior legal adviser, Matt Russell.
“The British side have been worried that the need to make the best possible defence in court would push us into some pleadings or argumentation that would be ill-advised from the viewpoint of maintaining the delicate balance in the agreement,” he said.
The British fears were based on the outcome of the challenge taken in 1973 to the Sunningdale Agreement by former Fianna Fáil TD Kevin Boland, by then leading Aontacht Éireann.
Like the McGimpseys, he had argued that Sunningdale’s acceptance that “there could be no change in the status of Northern Ireland until a majority in the North so decided” was unconstitutional because it conflicted with Articles 2 and 3.
In its rulings, the High Court and the Supreme Court in Dublin, on appeal, rejected Boland’s challenge, but they ruled that Sunningdale was not a legally binding treaty altering sovereignty, but rather a policy declaration.
Though a legal victory for the Irish government, the ruling was a political defeat because it robbed the Cosgrave government of the opportunity to argue that Sunningdale could fundamentally change Northern Ireland’s politics.
In a meeting with Irish diplomats in late January 1985, British officials said the Anglo-Irish Agreement offered “a voice for nationalists balanced by a reassurance to unionists on the status of Northern Ireland.
British ministers showed “great concern”, recorded diplomat Seán Ó hUiginn, that what might be said in open court could be used as a stick with which to beat the British government both by unionists and by disgruntled Conservatives.
Having been shown a copy of the Irish government’s defence to the action, the British side said it could be argued that an internationally binding treaty commitment had been weakened to no more than a policy pledge regarding the accepted status of Northern Ireland.
“The difficulty with this was that a policy could change from government to government and critics of this agreement could say that while one taoiseach gave what had been accepted as a binding commitment, it turned out to be no more than a policy,” Ó hUiginn recorded.
Replying, the Irish officials said the McGimpsey action presented “something of a dilemma”, since it could argue that a referendum was not necessary because sovereignty was not being transferred, but that weakened the power of what was signed off on at Hillsborough.
“The British side wondered whether the agreement as an international treaty would remain binding, irrespective of domestic law. [Or] would there be a referendum if the case was lost,” the Ó hUiginn note continued.
