Recently the Taoiseach spoke of the opportunity that exists to provide stable inclusive governance for the people of Northern Ireland, end paramilitarism and achieve a historic outcome to decommissioning. This required movement from both sides, including acts of completion by the IRA. Expanded joint authority of the North as envisaged by Sinn Féin is a non-runner, writes Pat Rabbitte
He said the de Chastelain commission should be left to get on with its job but recognised - on account of the deficits of mistrust from the past - that additional elements of transparency were required.
According to the Taoiseach, for a number of reasons that were not spelled out, the window of opportunity for agreement is very narrow. He said the DUP has "an unprecedented opportunity to consolidate peace . . . If this opportunity is squandered, it will have consequences, both in terms of the time that elapses before we can again seek to restore devolved government in Northern Ireland and as regards the form and content of the political process during the interim period."
I believe everyone should welcome credible and definitive action on decommissioning. However I do not believe we need to hail such actions as concessions by the IRA but rather as the democratic duty it owes to the people of this island, a duty that should long since have been discharged.
There was no mention by the Taoiseach of the history of delay, prevarication, demands for clarification, gnomic utterances, false trails, garden paths and double-speak by the republican leadership.
In any event, in a speech in New York, Gerry Adams was already looking beyond the collapse of the present talks. He said that in such an event, direct rule would not be sustainable in the long term, and suggested "the two governments look to formal institutionalised power-sharing at government level".
This proposed solution - a stronger role for Dublin in Northern affairs, badgering the British to go over unionist heads, joint authority as a substitute for devolved government - provides further evidence that Sinn Féin was never that pushed about devolved government in the North in the first place.
If devolved government was a high priority, would they not have given more consideration to recent proposals from the SDLP that advocate the recalling of the Assembly and the appointment of civic administrators to do the jobs of ministers until the parties can agree on the formation of the Executive?
Joint authority is a non-runner because it would be unconstitutional. The present Article 3 repeats one aspect of the article it replaced in the referendum on the Belfast Agreement. Pending national unification, laws enacted by the Oireachtas apply only within the jurisdiction of this 26-county State.
The Supreme Court confirmed in 1975 that the Oireachtas is not free to legislate for Northern Ireland as though it were part of this State. The amended Articles 2 and 3 have abandoned the "territorial claim" and place that incapacity beyond doubt.
The result is we could no more share with Britain authority for the governance of Northern Ireland than we could for Pitcairn Island.
As an exception to this rule, there is explicit constitutional provision for the creation of all-Ireland implementation bodies. Under Article 29.7 however, these are meant to be bodies established by or under the British-Irish agreement signed by the two governments in April 1998 as part of the Belfast Agreement package. They should be operating under the aegis of the North/South Ministerial Council, a body made up of Irish Government ministers and Northern Ireland ministers.
But there is no Assembly, no Executive and no North/South council at present. There is no umbrella under which all-island implementation bodies could operate.
Following the last suspension of the institutions in 2002, legislation was passed to deal with this problem on a temporary basis. As the Taoiseach told the Dáil though, "it was to operate for . . . a maximum of nine months. Ultimately, if somebody was to challenge these issues, the present arrangements probably would not stand up and we are all aware of that."
Article 3.2 of the Constitution overlaps Article 29 to some extent and also allows for institutions with executive powers and functions to be shared between both jurisdictions on the island. These would be established by the "respective responsible authorities" and would exercise powers and functions in respect of all or any part of the island.
But the heart of the problem is that Northern Ireland does not have a local "responsible authority". In its absence, the British government is its responsible authority. Try selling to the Southern electorate the notion that executive powers in "all or any part of this island", from Cork to Donegal, should be exercised jointly with the British government. In the name of republicanism?
The two governments have often mentioned the need to move to a Plan B, yet they have never articulated what Plan B actually is.
In the absence of this, and if the agreement cannot be restored, the only apparent solution is one that will please no one: no all-island implementation bodies, a return to arrangements similar to the Anglo-Irish Agreement with a Maryfield-type secretariat and close inter-governmental consultation (but no executive role) for the Irish Government in the affairs of a Northern Ireland governed by direct rule from London.
In other words, the failure to reach agreement by November 26th will result in limited east-west arrangements, even less North-South, and nothing internal at all. Some Plan B!
I will be as supportive as I can of any measure aimed at producing a settlement that brings stable institutions and democratic governance to the North, but important legal and constitutional questions are at the heart of talks concerning an agreement which belongs to all us all. Yet the debate is conducted on a secretive, bilateral, basis with only certain, "problem" parties.
I ask the Taoiseach to present a comprehensive analysis of the situation to the Dáil this week.
Pat Rabbitte TD is leader of the Labour Party